Opinion
No. 78-914
Decided August 2, 1979. Rehearing denied August 23, 1979. Certiorari denied October 22, 1979.
Penitentiary guard was convicted of three counts of bribery and one count of aiding an escape, and he appealed.
Reversed
1. CRIMINAL LAW — Prosecution of Penitentiary Guard — Bribery — Aiding Escape — Extensive Involvement — Government — Circumstances of Offenses — Refusal of Instruction — Entrapment — Reversible Error. Where, in prosecution of penitentiary guard for bribery and aiding an escape, evidence showed agreement between prison inmate and state bureau of investigation requiring inmate to make a case against defendant, and where government placed inmate in unit which defendant supervised, where defendant testified that escape idea was initiated by inmate, inmate testified that he "constantly bugged" defendant to tell him details of escape plan and where there were initial attempts to involve defendant in scheme to introduce contraband into penitentiary, trial court's refusal to instruct jury on defense of entrapment was reversible error.
2. Penitentiary Guard — Limited Arrest Powers — No Showing — Authorization — Undercover Activities — Refusal of Instruction — Theory of Case — Execution of Public Duty — Not Error. Since penitentiary guard only had authority to make arrests on state penitentiary grounds, and since, in his prosecution for bribery and aiding an escape, the guard presented no evidence that he had any authorization to engage in undercover activities outside the penitentiary, the trial court properly refused to instruct the jury on defendant's theory of the case that his involvement in the escape scheme constituted execution of a public duty in that he was trying to apprehend an escaped convict.
3. Offense — Aiding An Escape — Definition — Aid or Assist — Erroneous — — "Rendering Assistance" Definition — Should Have Been Used. In prosecution for aiding an escape, the trial court erred in defining "to aid or to assist" in terms of the wording of § 18-1-901(3)(a), C.R.S. 1973 (1978 Repl. Vol. 8), rather than using the definition of "rendering assistance" in § 18-8-105, C.R.S. 1973 (1978 Repl. Vol. 8).
4. Bribery Charge — One Planned Escape — Three Payments — Sufficiently Distinct — Defendant Properly Charged — Three Counts. Although three individual payments were made to defendant in connection with scheme to aid penitentiary inmate to escape, they were sufficiently distinct in nature so as not to be part of "a continuing course of conduct," and thus, defendant was properly charged with three counts of bribery.
Appeal from the District Court of Fremont County, Honorable Max J. Wilson, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.
R. D. Jorgensen, for defendant-appellant.
Ronald Douglas Roberts, a guard at the Colorado State Penitentiary, appeals his conviction of three counts of bribery and one count of aiding an escape. We reverse.
In July 1978, Jesse Nichols, an inmate in the Colorado State Penitentiary, was arrested for conspiracy to sell narcotics in the penitentiary. Nichols entered into a plea bargain agreement whereby he agreed to "make introductions and provide sufficient evidence in order to make a 'case' on one guard and employees [sic], to-wit: Ron Roberts, and other guards that may be involved." Suspicion surrounding Roberts was based on Nichols' statements that Roberts had been involved in introducing contraband into the penitentiary. Nichols was subsequently placed in the diagnostic unit of the penitentiary where Roberts was employed as a guard.
Part of the plan was for Nichols to introduce defendant to Kenneth Brown, a Colorado Bureau of Investigation agent posing as an organized crime figure. Brown, in his undercover role, called the penitentiary several times to talk to Nichols, and in the course of these calls also talked to defendant. Nichols told defendant that Brown was a good friend of Bill Nichols, Jesse's brother, who was at that time an escapee from the penitentiary.
A meeting was arranged between Brown and defendant at a motel in Canon City on October 29, 1976. At this meeting and at subsequent meetings Brown attempted to involve defendant in the introduction of contraband, either narcotics, alcohol, or money, into the penitentiary. The defendant refused to become involved in this activity. However, defendant and Brown discussed a plan to help Jesse Nichols escape from the penitentiary. At the second meeting between Brown and defendant on November 2, 1976, defendant was allegedly given $79 to obtain false papers necessary as part of the escape plan. At a subsequent meeting, defendant was given an additional $50 for this purpose. The final meeting between Brown and defendant, also involving another undercover CBI agent, was held on November 23, 1976, at which time defendant was paid $5,000 as partial payment for the escape plan.
I.
Defendant asserts error in the trial court's denial of his motion to dismiss on the ground of entrapment per se and in its refusal to instruct the jury on the issue of entrapment. We conclude that although defendant did not produce sufficient evidence of entrapment to require dismissal of the charges, see People v. Sanchez, 40 Colo. App. 552, 580 P.2d 1270 (1978), he was entitled to an instruction on entrapment.
[1] Defendant's evidence presented to support the entrapment defense consisted of the provisions in the plea bargain agreement between the inmate and the CBI requiring the inmate to make a case against defendant, the government's action in placing Nichols in the unit that defendant supervised, defendant's testimony that the escape idea was initiated by Nichols, the inmate's testimony that he "constantly bugged" defendant to tell him details of his escape plan, and the initial attempts to involve defendant in the scheme to introduce contraband into the penitentiary.
In light of this evidence, the trial court's refusal to instruct on the entrapment defense was reversible error.
II.
Defendant's theory of the case was that his involvement constituted execution of a public duty in that he was attempting to apprehend the escaped convict, Bill Nichols. The trial court refused to instruct the jury on the affirmative defense of execution of public duty. Section 18-1-701, C.R.S. 1973 (now in 1978 Repl. Vol. 8). The propriety of this refusal depends upon the legal question of whether defendant, as a penitentiary guard, had a public duty to apprehend an escaped convict by using undercover techniques.
[2] Although defendant falls within the general definition of "peace officer" found in § 18-1-901(3)(1), C.R.S. 1978 (now in 1978 Repl. Vol. 8), his authority to make an arrest is limited to "any grounds owned or leased by this state and used by the state penitentiary." Section 17-20-103, C.R.S. 1973 (1978 Repl. Vol. 8). Furthermore, defendant presented no evidence that he had any authorization to engage in undercover activities outside the penitentiary.
Accordingly, the trial court did not err in refusing an instruction on execution of a public duty.
III.
[3] Defendant's next assignment of error is that, in instructing the jury on the offense of aiding an escape, the trial court erred in defining "to aid or to assist" in terms of the wording of § 18-1-901(3)(a), C.R.S. 1973 (now in 1978 Repl. Vol. 8) rather than the definition of "rendering assistance" in § 18-8-105, C.R.S. 1973 (now in 1978 Repl. Vol. 8). We agree with the defendant that § 18-8-201(3), C.R.S. 1973 (now in 1978 Repl. Vol. 8) clearly contemplates the use of the latter definition.
IV.
We find no merit to defendant's assertion of error relative to the trial court's limitation of his cross-examination of Brown about his prior undercover activities. There was no showing that these collateral matters were material to the issues in this case. See People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976).
[4] Also, although the three individual payments to defendants were all made for services in connection with Nichols' planned escape, we conclude that they were sufficiently distinct in nature as not to be part of "a continuing course of conduct" as that phrase is used in § 18-1-408(1)(e). See People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978). Hence, contrary to defendant's contention, charging defendant with three counts of bribery was proper.
The judgment is reversed and the cause is remanded for a new trial consistent with the rulings expressed herein.
JUDGE VAN CISE and JUDGE STERNBERG concur.