Opinion
No. 77-141
Decided March 15, 1979. Rehearing denied April 12, 1979.
Defendant appealed his conviction on three counts of felony theft, three counts of second degree burglary, and one count of petty theft.
Affirmed
1. CRIMINAL LAW — Jury Instruction — Unexplained Recent Possession — Properly Given — Time of Possession — At Arrest — Or — Earlier. In theft prosecution, an unexplained recent possession instruction may be given to the jury where there is evidence that defendant had exclusive possession of the recently stolen goods whether that possession was at the time of defendant's arrest or at an earlier time.
2. Evidence — Admission — Extrinsic Proof — Witness' Prior Statement — Objectionable — No Contemporaneous Objection — Not Plain Error. Although, in criminal trial, admission of extrinsic proof of a witness' prior statement may have been objectionable, nevertheless, where the witness admitted making the statement and, notwithstanding the impropriety of the admission of such proof, there was no contemporaneous objection on these grounds, there was no plain error in the admission of the statement.
3. Evidence — Prior Inconsistent Statement — Admissible — Requirements. Evidence that a witness made a prior inconsistent statement is admissible where the statement is inconsistent, the witness is given an opportunity to explain or deny the statement or be available for recall, the statement purports to relate to a matter within the witness' personal knowledge, and the evidence offered to prove the prior inconsistent statement was made is otherwise competent.
4. EVIDENCE — Testimony — Pertaining — Whether Statement Was Made — Not Hearsay — Impeachment. Testimony by one who has heard a statement, going to whether a statement was made, is not hearsay and is properly admitted for purposes of impeachment and for the fact that the statement was made to the impeaching witness.
Appeal from the District Court of the County of El Paso, Honorable Bernard R. Baker, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Linda Palmieri Rigsby, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Steven H. Denman, Deputy State Public Defender, for defendant-appellant.
Defendant appeals his convictions on three counts of felony theft, three counts of second degree burglary, and one count of petty theft. We affirm.
I.
Defendant contends that the evidence was insufficient to support the instruction given by the court on exclusive unexplained possession of recently stolen property. Upon such an instruction, the jury may conclude that defendant committed the burglary. See People v. McClendon, 188 Colo. 140, 533 P.2d 923 (1975).
Defendant first argues that his possession was not "exclusive." We disagree. There was testimony that defendant transferred stolen property from one of the burglarized premises to the trunk of the car and defendant admitted that he helped carry items from the car to the house of the person to whom they were sold. This evidence was sufficient to establish exclusivity. See People v. Haggart, 188 Colo. 164, 533 P.2d 488 (1975); Diaz v. People, 161 Colo. 172, 420 P.2d 824 (1966).
Defendant also contends that an exclusive unexplained possession instruction may not be given unless defendant has possession of the recently stolen property at the time of his arrest. Defendant "derives" this rule from a number of Colorado cases; however, defendant's position has not been specifically adopted in any Colorado appellate decision. Rather, in People v. Austin, 185 Colo. 229, 523 P.2d 989 (1974), a case where defendant was not in possession of the stolen property when arrested, the court held that "the jury may infer that the accused committed the theft from the circumstance of his recent, unexplained, exclusive possession of the article involved." There was evidence in that case, as here, that defendant had been in possession some time prior to his arrest.
[1] Moreover, the rationale of the unexplained possession doctrine is that when property is in a defendant's possession recently after a burglary, there is a "high probability" that the defendant has committed the burglary. See People v. McClendon, supra. We are unable to perceive any significant difference between establishing the requisite possession of the stolen property by the testimony of the arresting officer and establishing such possession, as was done in this case, by the testimony of other witnesses. Nor has any reason been suggested why such possession must exist at the time of arrest. We therefore hold that an unexplained possession instruction may be given where there is evidence that defendant had exclusive possession of the recently stolen goods whether the time of that possession was at the time of defendant's arrest or at an earlier time.
II.
Defendant's other contention for reversal is that the court erred in allowing Detective Ownbey to testify about a prior statement made by the witness, Rodney Quein. Quein was called as a witness for the People and was asked whether defendant had told him that he had participated in one of the burglaries. The defense did not object to this question or to Quein's answer — that defendant had not made the statement.
In an effort to impeach the witness, the People then asked Quein whether he had told Detective Ownbey that defendant had told him (Quein) that defendant had participated in the burglary. Although Quein's answer to this question and subsequent similar questions on cross, redirect, and re-cross changed depending on who was asking the questions, it appears that Quein admitted and explained the prior inconsistent statement. The People then called Detective Ownbey and asked him whether Quein had made the prior inconsistent statement. Ownbey stated that Quein told him that defendant had said to Quein that defendant participated in the burglary.
Defendant contends that admission of Ownbey's testimony about what Quein told Ownbey defendant had said was prejudicial error. We disagree.
[2] Initially, we note that it is not clear from the transcript whether Quein denied making the statement to Ownbey. If in fact he admitted making the prior inconsistent statement, then the trial court should not have permitted Ownbey's testimony for the purpose of impeaching Quein, as there was nothing to impeach. See People v. Flanders, 190 Colo. 31, 543 P.2d 63 (1975); Duran v. People, 162 Colo. 419, 427 P.2d 318 (1967). If this be the case, the testimony of Ownbey, on this point, was inadmissible. However, as defendant failed to make a contemporaneous objection on these grounds, admission of extrinsic proof of Quein's prior statement which Quien admitted making does not, in the circumstances of this case, constitute plain error. Crim. P. 52(b); see People v. Fletcher, 37 Colo. App. 173, 546 P.2d 980 (1975) (admitting prior consistent statement was not plain error where witness had not been impeached by a prior inconsistent statement), rev'd on other grounds, 193 Colo. 314, 566 P.2d 345 (1977).
[3] Even if, as all the parties have assumed, Quein denied making the prior inconsistent statement, we perceive no error. Evidence that a witness made a prior inconsistent statement is admissible if the requirements of § 16-10-201, C.R.S. 1973 (now in Repl. Vol. 8), are met. The statement must be inconsistent, the witness must be given an opportunity to explain or deny the statement or be available for recall, the statement must purport to relate to a matter within the witness' (Quein's) personal knowledge, and the evidence offered to prove that the prior inconsistent statement was made must be "otherwise competent."
Here, Quein was asked and, we here assume, denied making the prior statement. The prior statement was inconsistent with his testimony at trial. And whether defendant actually made the statement to Quein was certainly a matter within Quein's personal knowledge.
[4] Defendant contends, however, that Ownbey's testimony was not "otherwise competent evidence," because it was "double hearsay." We do not agree that Ownbey's testimony was hearsay. He was asked whether Quein had made a particular statement to him. Ownbey answered that he had. Testimony by one who has heard a statement, going to whether a statement was made, is not inadmissible hearsay. See Fernandez v. People, 176 Colo. 346, 690 P.2d 346 (1971); 5 J. Wigmore, Evidence § 1766 (3d ed. 1940); 2 S. Gard, Jones on Evidence § 8:6 (6th ed. 1972). Cf. People v. Lyles, 186 Colo. 302, 526 P.2d 1332 (1974). Thus Ownbey's testimony as to Quein's prior inconsistent statement was properly admitted for purposes of impeaching Quein's testimony and for the fact that Quein made the statement to Ownbey.
Judgment affirmed.
JUDGE ENOCH and JUDGE BERMAN concur.