Opinion
Oct. 30, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 94
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Truman E. Coles, Denver, for defendant-appellant.
PIERCE, Judge.
Defendant appeals from convictions on counts of aggravated robbery and of conspiracy. We affirm.
I.
Defendant's principal allegations of error concern testimony of witness Kelly, who was originally a co-defendant in the case. At the trial of defendant, Kelly was called by the prosecution, and his testimony was essentially exculpatory as regards defendant. As a consequence, the prosecution was permitted to introduce the prior inconsistent written statement given by Kelly to a detective immediately following his arrest. Defendant sets forth three objections in connection with Kelly's testimony and the introduction of the prior inconsistent statement.
A.
He first argues that he was entitled to a mistrial following the opening statement in which the prosecutor referred to Kelly's testimony. Relevant portions of the prosecutor's opening statement are as follows:
'This is one witness that I can't tell you for sure what he is going to testify to, I haven't talked to him, and that is Mr. Kelly, who was arrested with Mr. Thompson that night.
'What I anticipate Mr. Kelly to testify to is that he was arrested that night with Mr. Thompson, went to the police station, and at the police station wrote out a confession saying how he was involved in this aggravated robbery along with Thompson and a third man by the name of John, who he didn't know.'
The eventual testimony of Kelly was not fully supportive of this opening statement in that he denied having implicated Thompson, at least by last name, and also that he stated that he signed a statement which was dictated to a detective, rather than having been written out by himself.
The mere demonstration that subsequent testimony was not fully supportive of the prosecutor's opening statement is not grounds for a mistrial, in the absence of an affirmative showing of manifest prejudice or bad faith. People v. Jacobs, 179 Colo. 182, 499 P.2d 615. There was no showing in this record that the prosecutor's statements were in any way prejudicial to this defendant. Where, as here, the confession was properly admitted into evidence, the contention that the opening statement referring to this confession was prejudicial becomes moot. Mitsunaga v. People, 54 Colo. 102, 129 P. 241. The trial court acted properly in denying defendant's motion for mistrial.
B.
Defendant further complains that the trial court erred in permitting the prosecution to impeach Kelly without having shown surprise. We do not agree. The introduction of the prior statement is statutorily sanctioned by s 16--10--201, C.R.S.1973:
'(1) Where a witness in a criminal trial has made a previous statement inconsistent with his testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and the inconsistent statement relate, if:
'(a) The witness, while testifying, was given an opportunity to explain or deny the statement, or the witness is still available to give further testimony in the trial; and
'(b) The previous inconsistent statement purports to relate to a matter within the witness's own knowledge.'
There is no need to demonstrate surprise in order to secure the admissibility of a prior inconsistent statement under this statutory provision. People v. Smith, 182 Colo. 228, 512 P.2d 269.
C.
We also reject defendant's argument that the trial court denied him a 'fair' trial by permitting testimony from Kelly as to his prior confession, and by allowing introduction of that earlier statement. Defendant cites no authority and gives no argument in support of this allegation.
His constitutional rights were not violated by this procedure, whether characterized as the right to confront witnesses or the right to due process of law, See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, since the witness was available for cross-examination at trial as to both his present and previous statements. Gaitan v. People, 167 Colo. 395, 447 P.2d 1001. The admission of evidence of this nature is particularly appropriate when, as here, the witness' testimony at trial is entirely favorable to the defendant, altogether differing from his earlier statements. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. We conclude that under these circumstances the substantive use of a witness' prior inconsistent statement in the form of a confession is not violative of any right to a 'fair' trial.
II.
Defendant further contends that the trial court erred in denying his motion for a directed verdict as to one of two aggravated robbery counts. He argues that the evidence is not supportive of a verdict of guilty of aggravated robbery in respect to Parrish, an employee of the store at which the robbery occurred. The trial court dismissed that count following a verdict of guilty by the jury, thereby curing any error in submitting that count to the jury. Velasquez v. People, 162 Colo. 266, 425 P.2d 708.
III.
Defendant also objects to the trial court's refusal to direct a verdict in his favor on the charge of conspiracy. He maintains that there is no independent evidence of conspiracy separate and distinct from the evidence relating to the substantive crime of aggravated robbery.
At the outset, we note that this is not an inconsistent verdict situation as in Robles v. People, 160 Colo. 297, 417 P.2d 232, in that here, unlike Robles, the jury returned a verdict of guilty as to the substantive crime as well as to the conspiracy charge. Even though it may not be necessary to introduce evidence separate and distinct from that relating to the substantive crime, See Kimmel v. People, 172 Colo. 333, 473 P.2d 167, in this case there was ample independent evidence of conspiracy before the jury, particularly from the testimony of witness Kelly as to plans made at another time and location concerning the commission of the robbery. Therefore, the jury had before it evidence supportive of the elements of the crime of conspiracy. See La Vielle v. People, 113 Colo. 277, 157 P.2d 621.
IV.
Although he failed to raise any objection prior to trial, defendant also contends that the conspiracy charges in the information lacked specificity. Any objection in this regard would have to have been directed to the form of the information, and would have had to have been made prior to trial. Russell v. People, 155 Colo. 422, 395 P.2d 16. The failure to present an objection with regard to the information constitutes a waiver of such objection, Crim.P. 12(b)(2), and there is nothing in the record in this case which would cause this court to grant relief from that waiver. See Mora v. People, 172 Colo. 261, 472 P.2d 142.
V.
Defendant's final allegation of error is that a preliminary examination of the witness Parrish by the trial judge in the presence of the jury operated to deny him a fair and impartial trial. He argues that the court's voir dire of this 17-year-old witness as to his understanding of the meaning of the oath bolstered the prosecution's case.
This argument is without merit. Voir dire in this instance was not atypical. The court asked only proper questions in order to ascertain whether the boy had the ability to observe and relate the facts in an accurate manner, and to establish whether he understood the moral obligation to tell truth inherent in the oath. See Marn v. People, 175 Colo. 242, 486 P.2d 424; s 13--90--106(1)(b), C.R.S.1973. Direct questioning was conducted without any objection by counsel for defendant. In addition, the voir dire of Parrish could not have had any prejudicial effect on this particular defendant as Parrish's testimony was directed only to the circumstances of the robbery, and did not directly implicate defendant in any way. Defendant has failed to demonstrate that the alleged error was in fact prejudicial; that a mere possibility of prejudice existed is insufficient to warrant reversal. Segura v. People, 159 Colo. 371, 412 P.2d 227.
Judgment affirmed.
SILVERSTEIN, C.J., and Van CISE, J., concur.