Opinion
No. 74-562
Decided August 19, 1976. Petition for rehearing granted and prior opinion announced May 27, 1976, withdrawn. Rehearing on August 19 opinion denied September 16, 1976.
Defendant was charged with aggravated robbery and conspiracy. From conviction by jury, defendant appealed.
Reversed
1. CRIMINAL LAW — Evidence — Mug Shot — Admission — Prejudicial Error — No Probative or Identification Value. Where a photograph of defendant charged with aggravated robbery and conspiracy was admitted into evidence, and the photograph was of the type widely known to be used by police and was described in testimony as a "mug shot," thus indicating that defendant had a prior criminal record, held, since the photograph had no probative or identification value, its admission into evidence was prejudicial error.
2. Statements by Co-conspirator — Outside Defendant's Presence — Admissible — If Furthering Conspiracy. Statements by co-conspirator, even when made out of the presence of a defendant, if made in furtherance of the conspiracy, are admissible; thus, where independent evidence of conspiracy was introduced, and trial court had sufficient basis for determining that the challenged statements were made during the concealment phase of the conspiracy, objection to admission of the statements was properly overruled.
3. Witnesses — Impeachment — Classification of Felony — Determined — Time of Commission. For purposes of the impeachment statute, the classification of a felony hinges on its classification at the time of the commission of the offense; accordingly, defendant's previous conviction of possession of 3.8 grams of marijuana, which offense was at the time a felony but which was subsequently classified as a misdemeanor, must, for purposes of impeachment statute, retain its felony classification.
Appeal from the District Court of Pueblo County, Honorable Philip J. Cabibi, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Dorian E. Welch, Deputy State Public Defender, for defendant-appellant.
Defendant, Rolland Luther Anders, was convicted by a jury of aggravated robbery and of conspiracy. He appeals, and we reverse and remand for a new trial.
The record reflects that on October 15, 1973, at approximately 8:30 p.m., two men wearing black ski masks and carrying pistols entered a mobile home and robbed the occupants of $310 in cash and a pistol. While the robbery was in progress, an automobile drove up to the mobile home, and one of the occupants of the home bolted to warn the driver to leave, but was unsuccessful. The robbers searched the automobile and removed 45 pounds of marijuana from the trunk. The robbers then telephoned an accomplice who drove to the mobile home in an automobile and the robbers left. The robbery was not reported to the police until approximately three and one half hours later.
Late in the evening following the robbery, one of the occupants picked Anders' photograph from a group of five photographs shown to him by an investigating officer on the basis that the photograph revealed facial characteristics similar to those which were visible through the mask of one of the robbers. Still later Anders was placed in a lineup which was viewed by the same witness. However, two other individuals were picked from this lineup by the witness as having similar characteristics to one of the robbers, but Anders was not.
Anders first contends that the trial court erred in admitting in evidence the police department photograph that the occupant had chosen from photographic array. We agree.
At trial the photograph was described in the testimony of an investigating officer as a "mug shot." It was a police identification photograph showing a full face and profile view of Anders of the type which is widely known to be used by police identification bureaus. See People v. Bugarin, 181 Colo. 57, 507 P.2d 879 (1973). While police identification information on the face of the photograph was masked by tape, the reverse side of the photograph contains information showing it to be a police department photograph.
The photograph was introduced on the theory that it helped establish identity; however, we conclude that the mug shot had no probative or identification value and that its introduction in evidence was prejudicial error.
[1] Anders was not identified in the physical lineup as having facial or other characteristics similar to that of one of the robbers, and there is no explanation as to why the witness picked Anders out of a photographic lineup but not a physical lineup. Hence, the photograph had no probative or identification value. On the other hand, since the photograph was described in testimony as a "mug shot," thus indicating a prior criminal record, its admission was prejudicial, and we do not view its admission as harmless error. People v. Bugarin, supra.
Since this case must be retried, we will address certain of the other issues raised by Anders. He contends that the trial court erred in allowing admission of statements by an alleged co-conspirator made in the presence of investigating officers. We disagree.
[2] Statements by a co-conspirator, even when made out of the presence of a defendant, if made in furtherance of the conspiracy, are admissible. People v. Braly, 187 Colo. 324, 532 P.2d 325 (1975); People v. Akins, 36 Colo. App. 337, 541 P.2d 338 (1975). In the present case, independent evidence of a conspiracy between Anders and another was introduced, and the trial court had sufficient basis for determining that the challenged statements were made during the concealment phase of the conspiracy. Hence, the trial court properly overruled the objection to their admission. People v. Akins, supra.
Anders further contends that the trial court erred in ruling that if he testified, the district attorney could question him concerning a prior conviction for possession of marijuana. We disagree.
On April 9, 1970, Anders was convicted of possession of 3.8 grams of marijuana which offense was at that time a felony. C.R.S. 1963, 48-5-20(2)(b). However, the statute was subsequently amended, and at the time of trial on the robbery charges, possession of that amount of marijuana was a misdemeanor. Section 12-22-322(7)(a), C.R.S. 1973.
Contending that his prior conviction should now be considered as a misdemeanor offense only, Anders sought, by pretrial motion, an order prohibiting any mention of his prior felony conviction should he elect to testify on his own behalf. This motion was denied. Anders did not testify in his own defense at trial, making it clear, however, that he would have done so but for the court's denial of his motion. Anders contends that the denial of the pretrial motion was prejudicial error, "chilling" as it did the exercise of his right to testify in his own behalf.
The felony impeachment statute in Colorado, § 13-90-101, C.R.S. 1973, provides that "the conviction of any persons for any felony may be shown for the purpose of affecting the credibility of such witness." While we recognize the general policy against the injection of issues in a criminal trial collateral to the question of a defendant's guilt or innocence, see, e.g., People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972), the injection of this collateral issue has been specifically authorized by the General Assembly when the defendant elects to testify even though the felony conviction occurs long before the trial. See People v. Yeager, 182 Colo. 397, 513 P.2d 1057 (1973); People v. Neal, 181 Colo. 341, 509 P.2d 598 (1973).
Since adoption of the impeachment statute in its present form in 1941, see People v. Yeager, supra, numerous amendments have been passed by the General Assembly regarding classification of criminal offenses as felonies or misdemeanors. However, no exceptions have been added to the impeachment statute. This strongly suggests the legislative intent underlying the statute is to classify a crime as a felony or misdemeanor based upon its classification at the time of the commission of the offense. The attack on the credibility of a defendant is based on the fact that he has a prior felony conviction. A subsequent reclassification of that prior offense from a felony to a misdemeanor does not change the fact that the defendant did, at the time, commit a felony.
[3] Moreover, to construe the statute as urged by Anders would lead to incongruous results. By way of illustration, as pointed out by the People, in 1953 the most serious form of larceny included the requirement that the value of the articles taken was in excess of $50. C.R.S. 1953, 40-5-2. By 1967, to constitute a felony the required value of the items stolen had increased to $100. 1967 Perm. Supp., C.R.S. 1963, 40-5-2(2)(b). A recent amendment increased the value of the articles stolen in felony theft to $200 or more. C.R.S. 1973, 18-4-401(2) (1975 Supp.). Theft of a $50 item is now a class 2 misdemeanor. C.R.S. 1973, 18-4-401(3) (1975 Supp.). However, the jury is not required to find the precise value of the items taken. People v. Austin, 185 Colo. 229, 523 P.2d 989 (1974). Hence, in many cases where a defendant was previously convicted of felony theft, the trial court would be unable to determine if the felony impeachment statute applied because it would not have available a judicial determination of the specific value of the items taken. Thus, we hold that, for purposes of the impeachment statute, the classification of a felony hinges on its classification at the time of the commission of the offense. People v. Beagle, 99 Cal. Rptr. 313, 492 P.2d 1 (1972); cf. People v. Marlott, 191 Colo. 304, 552 P.2d 491 (1976).
We have considered defendant's other allegations of error and find them to be without merit.
Judgment reversed and cause remanded for a new trial.
JUDGE ENOCH CONCURS.
JUDGE STERNBERG specially concurs.