Opinion
No. 77-682
Decided November 24, 1978. Rehearing denied December 21, 1978. Certiorari granted May 14, 1979.
Convicted of bribery, defendants appealed.
Affirmed
1. CRIMINAL LAW — Definition of Word — In Statute — Question of Law — For the Court — Submission to Jury — Question — Defendant — "Public Servant" — Error. The definition of a word used in a statute is a question of law for the court; thus, trial court erred in allowing jury to determine whether defendant was a "public servant" within the meaning of that term in the bribery statute.
2. Bribery — Employee — Urban Renewal Authority — "Public Servant" — Within Meaning of Statute. An employee of city's urban renewal authority, is, as a matter of law, a "public servant" within the meaning of that term in the bribery statute.
3. Witnesses — Testimony of Accomplice — Jury Properly Instructed — Some Corroboration Present — Not Insufficient — Support Guilty Verdict. Since, in bribery prosecution, jury was properly instructed on standard to use in weighing uncorroborated testimony of an accomplice, and since, as to one defendant, the accomplice's testimony was corroborated by other evidence, the accomplice testimony was not insufficient, as a matter of law, to support the jury's finding of guilt beyond a reasonable doubt.
4. Agreement — Two Persons — Confer Pecuniary Benefit — Public Servant — — Constitutes — Bribery — Not Required — Public Servant — Party to the Agreement. Agreement by two persons, neither of whom is a public servant, to confer a pecuniary benefit upon a public servant with the intent to influence the public employee's actions constitutes bribery, and it is not necessary to demonstrate that such agreement was between the public servant and the accused.
5. No Motion for Severance — Defendants — Waived Allegation — Bringing Several Charges — Prejudicial. Since defendants in bribery prosecution failed to move for a severance before trial, they waived issue as to whether they were prejudiced by the fact that prosecution brought several charges against them and introduced evidence in support of all these charges at their one trial.
6. Nine-Count Indictment — Seven Charges Dismissed — End of Trial — Evidence Submitted to Jury — Separate and Distinct — Instructed — Disregard Evidence — Dismissed Charges — No Prejudice Shown. Although all but the two bribery charges of nine-count indictment were dismissed at the end of trial, the evidence supporting the bribery charges that went to the jury was separate and distinct from the evidence concerning the other crimes with which defendants where charged, and the jury was instructed to disregard the evidence on the dismissed charges;, hence, the procedure followed as to the dismissed charges did not serve to prejudice defendants as to the two bribery charges.
7. Motion — Judgment of Acquittal — End of Prosecution's Case — Defendants — Not Stand on Motion — Presented Evidence — Waived Any Error — Denial of Their Motion. Although at the end of prosecution's case defendants moved for judgment of acquittal on certain charges contained in nine-count indictment, they did not stand on that motion and instead presented evidence relating to those charges; consequently, they waived any error relative to the adverse ruling of the court on their motion.
Appeal from the District Court of El Paso County, Honorable George M. Gibson, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Lynne Ford, Assistant Attorney General, for plaintiff-appellee.
Bruce Ducker, Coghill, Goodspeed Horowitz, Jay Horowitz, for defendants-appellants.
Charles B. Bailey and Robert E. Edwards were convicted of bribery. On appeal, Edwards and Bailey argue that their convictions should be set aside because defendant Edwards was not a "public servant" as that term is used in the bribery statute, § 18-8-302, C.R.S. 1973. Both defendants also contend that they were denied a fair trial by the court's instructions to the jury concerning the testimony of an accomplice witness. Bailey asserts that the trial court erred in denying his motion for a judgment of acquittal, arguing that the evidence before the jury was insufficient to serve as a basis for its conclusion that he had violated the bribery statute. Finally, they argue that they were prejudiced by the introduction of evidence of other crimes, and by the allegedly improper statements made during the prosecution's closing argument. We affirm the convictions.
In 1975, Edwards was a "rehabilitation specialist" for the Colorado Springs Urban Renewal Effort (CURE). Bailey, a self-employed demolition contractor from Oklahoma, bid for and was awarded the demolition contract for three blocks of an urban renewal area in Colorado Springs known as the Alamo Plaza Project. Under CURE's contract with Bailey, he was entitled to all salvageable property in or affixed to any building as to which CURE had mailed Bailey a "Notice to Proceed," indicating that the demolition work could begin. CURE's practice was to remove all or most of the salvageable property before issuing such a notice. Edwards was the CURE employee in charge of issuing the Notice to Proceed for this project.
The defendants were convicted primarily on the testimony of one Donald Reinhard, who was granted immunity. He was a subcontractor doing hauling and salvage work for defendant Bailey. Reinhard's job was to remove all salvage from the buildings scheduled to be demolished by Bailey; two-thirds of the proceeds realized from the sale of this salvage were to go to Reinhard and one-third to Bailey. Reinhard was not satisfied with the quality of the salvage left after CURE issued the Notice to Proceed. In his words, "We got nothing out of it but the junk, so to speak."
According to Reinhard, in April 1975, Bailey arranged a meeting, at which Edwards and Reinhard were present, in the coffee shop of the Antlers Plaza Hotel in Colorado Springs. This was the first time Reinhard had ever met Edwards. Reinhard testified that before Edwards arrived at the coffee shop, Bailey told Reinhard that this was "sort of a touchy situation" and that, "We're going to have to take care of Mr. Edwards." Reinhard explained that, after talking with Edwards at the meeting, he understood what had been meant: If he made cash payoffs to Edwards, CURE would leave a higher quality salvage for him to remove and sell. According to Reinhard, Edwards stated at that three-party meeting that he could help the demolition contractors a great deal, but he did want to be "taken care of," and that Edwards suggested a payment of $500 per month.
Reinhard further testified that on July 2, 1975, Edwards approached him at Reinhard's warehouse office, and asked him for $500 for a trip he was taking with other employees of CURE. Reinhard testified that he gave Edwards a check for $350, marking the check "payment of a personal loan." Reinhard testified that this money was paid for the purpose of getting better salvage, although he never got it, and that the $350 was never repaid by Edwards. Edwards testified that he had repaid the $350 "loan" to Reinhard, and that he had never requested $500 a month from him. Bailey admitted meeting with Reinhard and Edwards at the Antlers Plaza but denied telling Reinhard that Edwards would have to be taken care of. He also denied discussing a payoff with Edwards.
I.
[1,2] The defendants first argue that the trial court erred as a matter of law by allowing the jury to decide whether Edwards was a "public servant." We agree that the jury should not have been allowed to decide this issue. The definition of a word used in a statute is a question of law for the court. Sanchez v. People, 142 Colo. 58, 349 P.2d 561 (1960). However, we hold that Edwards was a public servant as a matter of law, and therefore reversal is not required.
Section 18-8-101, C.R.S. 1973, provides:
"(1) 'Government' includes any branch, subdivision, institution, or agency of the government of this state or any political subdivision within it."
( See also §§ 18-1-901(3)(i) and 29-1-202(1), C.R.S. 1973)
"(2) 'Governmental function' includes any activity which a public servant is legally authorized to undertake on behalf of a government. "(3) 'Public servant' means any officer or employee of government, whether elected or appointed, and any person participating as an advisor, or consultant, engaged in the service of process, or otherwise " performing a governmental function . . . ." (emphasis supplied)
The question is reduced to whether Edwards was "performing a governmental function" on behalf of a "government" as those terms are defined in the statute. If CURE is a "government," the various tasks that Edwards was hired to perform, being specified in the statute, were of such a nature as to be within the statutory definition of a "governmental function." Section 31-25-103(10)(b), C.R.S. 1973.
To determine if CURE is a "government" within the meaning of the above statute, we are guided by the Urban Renewal Law. Section 31-25-102, C.R.S. 1973, the legislative declaration, provides for the creation of Urban Renewal Authorities by municipalities for the alleviation of problems attendant to the menace of slum and blighted areas within the municipalities. Section 31-25-104(1)(b), C.R.S. 1973, refers to such an entity as being "the Urban Renewal Authority for [the] municipality." Other language in § 31-25-104, C.R.S. 1973, provides for creation of the Authority by the governing body of the municipality and for appointment of members of the board of the Authority by the Mayor. Significantly, a commissioner of the Authority may be removed by the Mayor, with consent of the governing body of the municipality, after hearing. Finally, that statute provides that the Authority "may call upon the municipal counsel or chief legal officer of the municipality for such legal services as it may require . . . ."
Considering all of these factors, we hold that an Urban Renewal Authority is a "branch, subdivision, institution, or agency" of the municipality that creates it. A municipality being a "political subdivision" of this state, it follows that, in this case, Edwards was "performing a governmental function" for a "government" and thus was a public servant as a matter of law.
II.
The defendants next contend that the trial court erred in instructing the jury concerning the accomplice testimony of Reinhard. We perceive no error. In People v. Martinez, 187 Colo. 413, 531 P.2d 964 (1975), the guidelines concerning accomplice testimony are stated as follows:
"In Colorado, an accomplice is not per se an unworthy witness. His status as an accomplice goes to credibility, but not to competency. This is true even though the accomplice has been promised immunity from prosecution by appearing as a witness against the defendant.
"If the jury is instructed to review the testimony with great caution, it may convict upon the uncorroborated testimony of an accomplice which is clear and convincing and shows guilt beyond a reasonable doubt."
Here, the jury was instructed that they could convict upon the uncorroborated testimony of an accomplice, but that they should act upon that testimony with great caution, and that they were "not to convict upon such testimony alone unless satisfied, after . . . careful examination, of its truth."
[3] Consequently, Reinhard's evidence of the conversation he had with Bailey just prior to the meeting in the coffee shop and his testimony of what transpired at that three-party meeting cannot be said, as a matter of law, to be insufficient evidence of the defendants' guilt beyond a reasonable doubt. Additionally, as to Edwards, the jury had before it corroboration in the form of Reinhard's check endorsed and negotiated by Edwards. Because we must view the evidence in the light most favorable to the jury verdict, Bennett v. People, 155 Colo. 101, 392 P.2d 657 (1974), and because the jury was informed of the proper standard to use in weighing an accomplice's testimony, this contention of error has no merit.
III.
Bailey also contends that because there was no evidence that he had paid or agreed to pay money to Edwards he could not be convicted of violating the specific statute under which he was charged and convicted. This contention has no merit.
The statute in question, § 18-8-302, C.R.S. 1973, provides:
"A person commits the crime of bribery if:
"(a) He offers, confers or agrees to confer any pecuniary benefit upon a public servant with the intent to influence the public servant's . . . exercise of discretion . . . ." (emphasis added)
[4] The language of this statute proscribes Bailey's agreeing with Reinhard to confer a benefit on Edwards in an effort to influence the latter. There was such evidence before the jury. The statute does not require proof that Bailey had agreed with Edwards to confer a pecuniary benefit upon Edwards.
IV.
The defendants next argue that they were denied a fair trial by the introduction of evidence which suggested that they had committed other crimes unrelated to bribery. Edwards and Bailey were initially charged in a 9-count indictment alleging several other improprieties relating to CURE. At the request of the People, two of these charges were dropped before trial. At the close of the evidence, the trial court dismissed the remainder of the charges except the two bribery counts, finding that some of the charges were "duplicitous," and that, as to the rest, the prosecution's evidence was "incredible as a matter of law."
[5] The defendants assert that they were prejudiced by the fact that the prosecution brought several charges against them and introduced evidence in support of those charges. The defendants waived this point by failing to move for severance before trial. See People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972).
[6] The defendants also contend that they were prejudiced because the evidence concerning the dismissed charges and the bribery charge overlapped. A review of the record, however, demonstrates that the evidence supporting the bribery charges that went to the jury was separate and distinct from the evidence concerning the other crimes with which the defendants were charged. Moreover, the jury was instructed to disregard the evidence on the dismissed charges, and we must presume this instruction was followed. People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976).
[7] Finally, in this regard, the defendants assert that they were prejudiced because the court did not grant their motion for judgment of acquittal at the end of the prosecution's case as to the other counts of the indictment, but rather required them to present evidence before the court dismissed such charges. However, by not standing on their motion for judgment of acquittal on these other charges, and by presenting evidence relating to them, the defendants waived the alleged error and are not entitled to have the adverse ruling on that motion reviewed. Silcott v. People, 176 Colo. 442, 492 P.2d 70 (1971). Indeed, it appears from the record that it was defendants' evidence that persuaded the trial court that the identification testimony relating to the other charges of the indictment was so unreliable as to require it to remove those charges from the jury's consideration.
V.
The defendants also argue that they were denied a fair trial by prejudicial and improper arguments made during the prosecution's summation. While there are isolated portions of the argument that approach the boundaries of ethically improper argument, the summation, taken as a whole, does not constitute reversible error.
The judgments are affirmed.
JUDGE ENOCH specially concurs.
JUDGE KELLY dissents.