Summary
In Maynes v. People, 169 Colo. 186, 454 P.2d 797, the Court expressed the view "* * * that double sentencing for the same transaction is inherently wrong and basically unjust * * *."
Summary of this case from People v. DuranOpinion
No. 23183.
Decided May 26, 1969. Rehearing denied June 16, 1969.
Defendant was convicted of burglary, larceny, and conspiracy to commit both crimes and brought error.
Affirmed. Remanded for Re-Sentencing Only.
1. CRIMINAL LAW — Photographs — Evidence. Photographs are ordinarily competent evidence of anything which may be described in words.
2. Photograph — Crawl Space — Porch of House — Passion or Prejudice — Admissible. A photograph taken of a defendant while he was in the crawl space under the porch of a house within two blocks of a burglarized store would not be deemed inadmissible merely because it could arouse passion or prejudice.
3. BURGLARY — Olive Green Jacket — Crawl Space — Porch of House — Circumstances — Probative Value — Exhibit — Admissible. Where olive green jacket was found lying beside defendant when he was found in the crawl space under the porch of a house within two blocks of a burglarized store; was reasonably attributable to defendant by the circumstances under which it was found; and its probative value was sufficiently established by the evidence, held, in the light of the evidence, the exhibit was not improperly admitted.
4. CRIMINAL LAW — Circumstantial Evidence — Mathematical — Unnecessary. Circumstantial evidence need not amount to a mathematical demonstration of guilt.
5. Guilt — Test — Evidence — Exclusion — Innocence. The applicable legal test of guilt in a criminal case is whether there is evidence in the record from which a jury can find beyond a reasonable doubt that the facts exclude every reasonable hypothesis of innocence.
6. JURY — Inference of Guilt — Evidence — Permissible. A jury is permitted to draw any reasonable inference of guilt from the evidence before it.
7. CRIMINAL LAW — Election Not to Testify — Jury — Inferences — Adverse. A defendant who elects not to testify in a criminal case cannot later complain that the jury drew reasonable inferences adverse to him.
8. BURGLARY — Larceny — Conspiracy — Evidence — Sufficiency — Guilt. In prosecution for burglary, larceny, and conspiracy to commit both crimes, reviewing court is of the view that there is ample incriminating evidence which is legally sufficient to sustain the jury's finding of guilt.
9. CRIMINAL LAW — Verdict — Evidence — Reviewing Court — Thirteenth Juror — Prohibition. Reviewing court is not permitted to sit as a 13th juror to set aside a verdict which is supported by competent evidence.
10. BURGLARY — Larceny — Double Sentencing — Unjust — Evasion — Legislative Intent — Punishment — Merger — Sentencing. Reviewing court is of the view that under facts of instant case, which is typical of many burglary-larceny situations, double sentencing for the same transaction is inherently wrong, basically unjust, and evasive of the legislative intent; moreover, reason and justice dictate that, for the purpose of punishment under such circumstances, the offenses should be merged by concurrent sentencing.
Error to the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
Richard A. Zarlengo, for plaintiff in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, George E. DeRoos, Assistant, for defendant in error.
This is a companion case to Maes v. People, 169 Colo. 200, 454 P.2d 792.
Plaintiff in error, Larry Gerald Maynes, and his co-defendant Maes were convicted by a jury of burglary, larceny, and conspiracy to commit both crimes. The charges arose out of a burglary at Bernard's Store in Denver, which occurred about 4:30 A.M. on April 1, 1966.
Plaintiff in error Maynes, hereinafter called defendant, was sentenced to from 8 to 10 years in the state penitentiary on each of the counts of burglary and larceny, with the sentences to run consecutively. He was sentenced to from 2 to 5 years on each of the counts of conspiracy to commit burglary and conspiracy to commit larceny, with the sentences to run concurrently with the respective sentences on the burglary and larceny counts.
The facts concerning the burglary and the police pursuit of the two men observed at the scene of the crime are detailed in Maes v. People, supra. The co-defendant Maes was arrested at a bank parking lot in the course of the pursuit from the scene of the crime. The second man who was being pursued, although ordered to halt, did not; a shot was fired at him, he fell, and then got up and ran away. An officer testified that near where the man fell, he found a red dripping substance which looked like blood.
The search for the second man was continued in the immediate neighborhood. About an hour after the burglary, at 5:30 A.M., defendant was found lying in a crawl space under the back porch of a house located about one and a half blocks from the area of the pursuit. When found, defendant had blood on his right shoulder, and blood down the back and right side of his shirt. A sports jacket found alongside him had a hole in the right shoulder.
Defendant assigns four errors: (1) Admission into evidence of a photograph taken of defendant while he was in the crawl space was prejudicial error; (2) Admission into evidence of the sports jacket found next to defendant at the time of his apprehension was prejudicial error; (3) Circumstantial evidence was insufficient to sustain defendant's conviction; and therefore, the trial court erred in refusing to sustain defendant's motion for judgment of acquittal at the close of the People's case; and, (4) The sentence imposed by the trial court was cruel, unusual and too harsh under the circumstances.
I.
The photograph showing defendant under the porch.
Defendant contends that the admission into evidence of Exhibit D, a photograph, was prejudicial error, because its only purpose was to inflame the minds of the jury. Since all of the trial exhibits were mislaid before the record was lodged in this court, we accept defendant's description of Exhibit D: the photograph showed a man under a porch, with his pants torn, his coat off, and his bare leg scratched and bruised. The exhibit was identified to be a picture of defendant when and as he was found in the crawl space under the porch of a house within two blocks of the burglarized store.
[1,2] Photographs are ordinarily competent evidence of anything which may be described in words. Claxton v. People, 164 Colo. 283, 434 P.2d 407, People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427 Hammil v. People, 145 Colo. 577, 361 P.2d 117, cert. denied 368 U.S. 903, 82 S.Ct. 182, 7 L.Ed.2d 98, Potts v. People, 114 Colo. 253, 158 P.2d 739, 159 A.L.R. 1410. The testimony of two police officers described finding defendant in the circumstances which were depicted by the photograph, and defendant made no objection to this testimony. Nor was the photograph inadmissible merely because it could, as defendant alleges it did, arouse passion or prejudice. People v. Spinuzzi, supra, Martinez v. People, 124 Colo. 170, 235 P.2d 810; Potts v. People, supra, Moya v. People, 88 Colo. 139, 293 P. 335.
We perceive no error in the admission of this photograph.
II.
The sports jacket found next to defendant when apprehended.
Defendant argues that the sports jacket lying beside him when he was found in the crawl space was inadmissible, because there was no showing that it belonged to defendant, or that the hole in the right shoulder was a bullet hole, or whether it had been cleaned since it was taken into police custody.
The olive green jacket was reasonably attributable to defendant by the circumstances under which it was found. Its probative value was sufficiently established by the evidence. There was eyewitness testimony that one of the burglars wore a dark sports jacket; that one of the fleeing burglars was shot at and fell; that blood was on defendant's right shoulder when he was apprehended; and, that there was a hole in the right shoulder of the jacket.
In the light of this evidence, it is our view that the exhibit was not improperly admitted.
III.
The question of the sufficiency of the circumstantial evidence.
Defendant contends that the trial court erred in refusing to grant a judgment of acquittal, because the evidence against him is entirely circumstantial and insufficient to sustain his conviction.
[4,5] We reiterate that circumstantial evidence need not amount to a mathematical demonstration of guilt. Mathis v. People, 167 Colo. 504, 448 P.2d 633, Gonzales v. People, 128 Colo. 522, 264 P.2d 508. The applicable legal test is whether there is evidence in the record from which a jury can find beyond a reasonable doubt that the facts exclude every reasonable hypothesis of innocence. Mathis v. People, supra, Militello v. People, 95 Colo. 519, 37 P.2d 527.
A review of the undisputed testimony is appropriate in disposing of defendant's contention: A store was burglarized about 4:30 A.M., and a substantial amount of clothing was stolen. There were eyewitnesses to the crime, who saw only two men, one of whom wore a dark sports jacket. Police arrived as the two burglars were running away, and the two men were continuously in sight until they reached a parking lot. At the parking lot, the co-defendant in this case was arrested. The other man continued to run, was shot when he refused to obey a halt order, fell, got up and ran away. A dripping red spot was found at the place where the man was shot, which a witness testified looked like blood.
The search for the second man continued, until defendant was found at 5:00 A.M., about an hour after the burglary. When found, defendant was in a crawl space, which was only about 3 to 4 feet wide and 2 to 3 feet high, under a porch at the back of a house within two blocks of the scene of the crime and the chase. He had blood on his right shoulder, on the right side and back of his shirt, and beside him lay a sports jacket with a hole in its right shoulder.
[6,7] Defendant exercised his constitutional right not to testify, and indeed, presented no evidence whatsoever on his behalf. The case was submitted to the jury on the basis of the uncontroverted evidence which we have here summarized. A jury is permitted to draw any reasonable inference of guilt from the evidence before it. The defendant here, having elected not testify, cannot now complain that the jury drew reasonable inferences adverse to him.
[8,9] We conclude that there is ample incriminating evidence which is legally sufficient to sustain the jury's finding of guilt. And this court is not permitted to sit as a 13th juror to set aside a verdict which is supported by competent evidence. Mathis v. People, supra, Cokley v. People, 168 Colo. 52, 449 P.2d 824.
IV.
The Sentence.
The Defendant contends that under the circumstances of this case, the consecutive sentences imposed by the court are too harsh.
As the result of the consecutive sentencing for burglary and for larceny, the defendant received a combined sentence of 16 to 20 years. The maximum statutory term for this burglary, as well as for the larceny, is 10 years. The problem posed here and the question we must decide is whether the burglary and the larceny involving one transaction may be subject to consecutive sentences. Under the facts of this case, which is typical of many burglary-larceny situations, it is our view that double sentencing for the same transaction is inherently wrong and basically unjust, and we believe evades the legislative intent. State v. Satterlee, 58 Wash. 2d 92, 361 P.2d 168, State v. Teutsch, 80 S.D. 462, 126 N.W.2d 112.
The rationale in support of our determination here is as follows: To establish successfully the burglary count, the People must, together with other elements, show that at the time of breaking and entering, the burglar must have had the intent to commit larceny. The People, in order to establish the intent to commit larceny presented evidence of a larceny, which circumstantially established the requisite intent. On this basis, therefore, the burglary and larceny should be viewed as a single transaction, indivisible for purposes of punishment. Reason and justice dictate that for the purpose of punishment under these circumstances, these offenses should be merged by concurrent sentencing. See Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370; Annotation, 59 A.L.R.2d 946, 994-1011.
* * *
The judgment of conviction is affirmed. The consecutive sentences for burglary and for larceny are ordered vacated and this cause is remanded for the purpose of re-sentencing the defendant in accordance with this opinion.
MR. CHIEF JUSTICE McWILLIAMS dissenting in part and concurring in part.
MR, JUSTICE DAY dissenting in part and concurring in part.
MR. JUSTICE GROVES dissenting in part and specially concurring in part.
MR. JUSTICE KELLEY not participating