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People v. Herrera

Court of Appeals of Colorado, Third Division
Aug 19, 1975
539 P.2d 483 (Colo. App. 1975)

Opinion

         Aug. 19, 1975.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

Page 484

Page 485

         J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G.

         Donovan, Sol. Gen., Patricia W. Robb, Designated Counsel, Denver, for plaintiff-appellee.


         Petersen & Fonda, P.C., Lawrence J. Simons, Pueblo, for defendant-appellant.

         VanCISE, Judge.

         Herrera was indicted in 1973 for sale of a narcotic drug (C.R.S.1963, 48--5--2, now s 12--22--302, C.R.S.1973), possession of more than one-half ounce of a narcotic drug (C.R.S.1963, 48--5--2, now s 12--22--302, C.R.S.1973), and conspiracy with another person or persons to sell a narcotic drug (C.R.S.1963, 48--5--2, and 48--5--20(1)(a), (c) and (i), now s 12--22--302 and s 12--22--322(1)(b) and (h), C.R.S.1973). The conspiracy count was amended during trial to a violation of C.R.S.1963, 48--5--2, only. He was convicted by a jury on all three counts and was sentenced pursuant to that conviction. Alleging that he was denied due process, he appeals. We affirm.

         I.

         Herrera first contends that he was denied due process because of the nearly five month delay between the date of the alleged offense and his indictment and arrest. At a pretrial hearing on Herrera's motion to dismiss the indictment on this issue, it was established that the alleged offenses occurred in a Pueblo bar the evening of January 13, 1973; Herrera was indicted June 4 and arrested June 5, 1973, Herrera testified that he had been in the Pueblo area most of the intervening time and that he could not remember where he was on January 13. The court concluded that testimony as to lack of recollection 'is a matter to be weighed by the jury in connection with the other evidence' to be adduced at the trial, and denied the motion. Herrera claims this denial was reversible error.

          '(T)he Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused," United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; thus, the delay in initiating charges against Herrera does not constitute a violation of this constitutional protection. However, even though no Sixth Amendment violation is present, a delay in initiating charges may so prejudice a defendant that the criminal proceedings cannot be conducted within the bounds of constitutional standards of due process. See People ex rel. Coca v. District Court, Colo., 530 P.2d 958; Marion, supra; Ross v. United States, 121 U.S. App.D.C. 233, 349 F.2d 210.

          Here, however, Herrera's claim of prejudice based upon his alleged inability to recollect the events of the evening in question is not sufficient in and of itself to establish a due process violation. People v. Duran, Colo., 535 P.2d 505. In United States v. Atkins, 487 F.2d 257 (8th Cir.), a case with a seven month delay between the offense and the arrest, the court stated:

'No error is shown on refusing to dismiss the indictment because of unreasonable delay in indicting appellant. . . . A claim merely of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice for reversal based on denial of due process. United States v. Golden, 436 F.2d 941 (8th Cir.), cert. denied, 404 U.S. 810, 92 S.Ct. 236, 30 L.Ed.2d 183.'

         Herrera, both at the hearing on his motion before trial and at the trial itself, failed to meet his burden of proving that the delay caused him substantial and actual prejudice. See United States v. White, 470 F.2d 170 (7th Cir.); Powell v. United States, 122 U.S. App.D.C. 229, 352 F.2d 705. At the hearing he made merely conclusory statements. At trial, he was able to testify and to produce witnesses in his defense with no difficulty. The delay was neither prejudicial nor unreasonable. Thus, there was no error in refusing to dismiss the indictment.          II.

         The original conspiracy count in the indictment was worded in pertinent part:

'THAT THEODORE SIMON HERRERA . . . and DAVID JOSEPH FUENTES . . . on or about the 13th day of January, A.D., 1973, within the County of Pueblo, State of Colorado, With intent to induce and aid another to unlawfully use and possess narcotic drugs, did then and there unlawfully and feloniously agree with each other and with some other person or person to the District Attorney unknown, To do and to aid in the doing by them, or some one or more of them at the County of Pueblo, State of Colorado, of an unlawful act, namely, a felony, which felony was the crime of Sale of a Narcotic Drug, As defined by Colorado Revised Statutes, 1963, 48--5--2 and 48--5--20, as amended; contrary to the form of the statute in such case made . . ..' (underlining added)

         At the conclusion of the People's case, Herrera's counsel moved to dismiss this count for failure of proof that Herrera had conspired 'to induce and aid another to unlawfully use and possess narcotic drugs.' After argument, the court denied the motion. However, it modified the wording of the count by striking the words that are underlined above and adding 'to commit' ahead of 'an unlawful act.' The jury was advised of the change at that point in the trial, and an instruction to the same effect was given at the conclusion.

          Herrera contends that the entire conspiracy count should have been dismissed. He asserts that the count as modified by the trial court did not satisfy the due process requirements of an indictment since it did not fully inform him of the crime he supposedly conspired to commit. He admits that the indictment as amended charges conspiracy to commit the crime of sale of a narcotic drug, but complains that it does not contain the statutory words or a specific reference to the statute concerning the felony.

         As stated in People v. Allen, 167 Colo. 158, 446 P.2d 223:

'The material averments of an indictment or information must necessarily be stated with such certainty as to apprise the defendant of the nature and cause of the charges against him, so that he can adequately defend himself and be protected from further prosecution for the same offense.'

         However, so long as 'the nature of the offense may be easily understood,' Imboden v. People, 40 Colo. 142, 90 P. 608, there is no requirement--constitutional, statutory, or procedural--that every element of the offense be alleged in the indictment, See People v. Ingersoll, 181 Colo. 1, 506 P.2d 364, or that the offense be in the language of the statute, Cortez v. People, 155 Colo. 317, 394 P.2d 346; See s 16--5--201, C.R.S.1973. Statutory reference is an immaterial part of an indictment. See People v. Marion, 182 Colo. 435, 514 P.2d 327; Lucero v. People, 164 Colo. 247, 434 P.2d 128. The modified indictment sufficiently advises Herrera of the crime he is charged with committing. See Feltes v. People, 178 Colo. 409, 498 P.2d 1128.

         We note that there was no showing that Herrera was prejudiced, surprised, or unable to defend himself as to the count. See Gould v. People, 167 Colo. 113, 445 P.2d 580; Walker v. People, 126 Colo. 135, 248 P.2d 287. Also, there is nothing in the record to show that he sought a bill of particulars to define more specifically the offense charged. He was granted and utilized pretrial discovery, and apparently he received all of the information he needed at that time.

          The propriety of the court's striking these portions from the conspiracy count in the indictment is not an issue on this appeal. Here the court in effect dismissed one of the charges in a duplicitous conspiracy count, and, as authorized by Crim.P. 7(f) and s 16--5--205(3), C.R.S.1973 , struck the surplusage not needed for a sufficient description of the offense of conspiracy to sell under C.R.S.1963, 48--5--2. See Specht v. People, 156 Colo. 12, 396 P.2d 838. Herrera was in no way prejudiced by this action.

         III.

          Herrera's final contention, that it was error to allow the People to refer to statements by or acts of the alleged coconspirator Fuentes and to use circumstantial evidence tying in Fuentes, is without merit. Defendant admits that if a valid conspiracy charge exists, as we hold, his evidence is proper. We agree. Since the conspiracy count is sufficient, we need not adress the issue of whether evidence of Fuentes' statements and acts could properly have been admitted into evidence in the absence of that count.

         Judgment affirmed.

         PIERCE and STERNBERG, JJ., concur.


Summaries of

People v. Herrera

Court of Appeals of Colorado, Third Division
Aug 19, 1975
539 P.2d 483 (Colo. App. 1975)
Case details for

People v. Herrera

Case Details

Full title:People v. Herrera

Court:Court of Appeals of Colorado, Third Division

Date published: Aug 19, 1975

Citations

539 P.2d 483 (Colo. App. 1975)