Opinion
No. 79CA0095
Decided October 25, 1979.
Convicted in trial to the court of second degree burglary, defendant appealed.
Affirmed
1. CRIMINAL LAW — Evidence — Defendant's Actions — When Apprehended — Sustained — Court's Finding — Specific Intent Present — Notwithstanding — Testimony of Toxicologist — .4 Blood Alcohol Level. Where police officers testified that when apprehended in ransacked house defendant was wearing gloves and was carrying a knife, and that he first tried to run further into the house but then complied with the officers' orders, and where one officer testified that defendant, although under the influence, was able to walk and appeared to be able to understand his rights, the trial court was free to conclude that defendant had the requisite specific intent to commit burglary although defendant presented testimony of toxicologist that if defendant had consumed as much alcohol as he claimed his blood alcohol level would have reached .4 percent which would have been so high as to preclude him from forming such intent.
2. Trial to Court — Defendant's Intoxication — Specific Intent At Issue — Limited Questions — By Court — Expert Witness — Effects of Alcohol — — Not Prejudicial. In trial to the court of burglary charge where, because of defendant's intoxication, specific intent was at issue, the trial court did not engage in prejudicial conduct by its limited interrogation of expert witness concerning the effects of alcohol.
3. Non-Jury Trial — Court — May Ask Questions — Bring Out Facts — Necessary — Performance of Its Functions. In a non-jury trial, the court may ask such questions as it may deem necessary to clearly bring out the facts so that the important functions of its office as trier of fact can be fairly and justly performed.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, William Morris, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Public Defender, Robert Briendel, Deputy Public Defender, for defendant-appellant.
Defendant was convicted of second degree burglary in a trial to the court. His basic defense was intoxication. On appeal he contends that the prosecution did not sustain its burden of proof as to the element of specific intent, and that the trial court improperly assumed the role of prosecutor by cross-examining defendant's expert witness. We disagree and affirm the conviction.
Defendant was arrested on Christmas Eve, 1977, in a Denver home which had been ransacked. Investigating officers stated that defendant wore gloves and was carrying a knife when arrested. They testified that when ordered to "freeze," defendant at first ran further into the house but then, in response to another order, stopped and complied with orders to lie down spread-eagle on the floor. One of the officers testified that, though defendant was under the influence, his ability to walk and understand his rights did not appear to be affected.
Witnesses for the defense, including the accused, testified that, on the day of the burglary, defendant had shared a pint of whiskey with another inmate at a work release center and drank at least three-quarters of another pint on his own. The accused stated that he also consumed six beers throughout the day.
A toxicologist testified for the defendant that if he had consumed as much alcohol as he claimed, his blood alcohol level would have reached .4 percent at the time of the breaking and entry. This expert also stated that no person with a .4 percent blood alcohol content would be capable of forming a specific intent.
[1] The court was free to conclude that defendant's claims of alcohol consumption were at odds with inferences of specific intent to commit a theft, which inferences could be drawn from his conduct at the time of arrest. See People v. Becker, 187 Colo. 344, 531 P.2d 386 (1975). We must review the evidence in the light most favorable to the prosecution. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). Thus, even though there was conflicting evidence as to defendant's ability to form the required intent, there was sufficient evidence to support the conviction.
[2] We find no prejudicial conduct in the court's limited interrogation of the expert witness concerning the effects of alcohol. Despite the adversary nature of trial, the court may at appropriate times take the initiative to "promote a just determination" of the charge. See, ABA, Standards Relating to The Function of the Trial Judge § 1.1 (1972). We hold this to be particularly true when the trial is to the court sitting without a jury.
[3] The trial court here stopped short of assuming the role of the prosecutor. Cf. People v. Martinez, 185 Colo. 187, 523 P.2d 120 (1974). (On District Attorney's failure to appear at suppression hearing, trial judge assumed prosecutor's role by calling witnesses, presenting evidence, and cross-examining all defense witnesses.) We hold that in a non-jury trial the court may ask such questions as it may deem necessary to clearly bring out the facts so that the important functions of its office as trier of fact can be fairly and justly performed. Schonberg v. Perry, 247 Cal. App. 2d 436, 55 Cal. Rptr. 579 (1966).
Judgment affirmed.
JUDGE COYTE and JUDGE KELLY concur.