Opinion
No. 23242
Decided March 16, 1970. Rehearing denied April 6, 1970.
Defendant was convicted of the crimes of receiving stolen goods and larceny by bailee and brought error.
Affirmed in Part, Reversed in Part.
1. LARCENY — Lack of Evidence — Reversal of Judgment and Sentence. Record reflects that the evidence is legally insufficient to support defendant's conviction for the crime of larceny by bailee inasmuch as the People failed to establish, even prima facie, the existence of a bailment, be it a bailment by finding or otherwise; hence, the judgment and sentence must be reversed.
2. CRIMINAL LAW — Guilty Knowledge — Circumstantial Evidence. Guilty knowledge may be established by circumstantial evidence.
3. RECEIVING STOLEN GOODS — Record — Admission — Facts and Circumstances — Jury — Inference — Evidence. In prosecution for crime of receiving stolen goods, reviewing court is of the view that record reflects facts and circumstances, coupled with defendant's admission, as would justify the jury in inferring that defendant knew he was dealing with stolen property: and since no testimony was offered by defendant or anyone else in his behalf, defendant is in no position to complain because jury drew inferences which were unfavorable to him but which were nonetheless warranted by the evidence.
4. Admission — Exhibit — Package of Meat — Identification — Evidence — Proper. In prosecution for crime of receiving stolen goods, admission into evidence of People's exhibit — a package of meat bearing trade name of company from which meat had been stolen, which exhibit had inadvertently been received into evidence and viewed by the jury — cannot be deemed prejudicial error; especially, where exhibit was sufficiently identified by another witness.
5. Ascertain — Name — Confidential Informant — Denial — Proper. In prosecution for the crime of receiving stolen goods, where counsel for defendant on cross-examination attempted to ascertain from police officer called as a witness for the People the name of a confidential informant and trial court sustained the objection to the question, held, under the circumstances, reviewing court perceives no error on trial court's part in sustaining the objection.
6. ARREST — Meat Market — Burglary — Informant — Investigation — Stake-Out — Probable Cause — Search and Seizure. In prosecution for crime of receiving stolen goods, where as result of information given police by informant, police made no immediate arrest, but after confirming fact that a burglary had occurred they continued their investigation by setting up a stake-out, and subsequent arrest occurred only after police had viewed various activities in and around meat market that had been burglarized, held, under the circumstances, police had probable cause to arrest defendant without a warrant, and subsequent search and seizure was a lawful incident thereto.
7. CRIMINAL PROCEDURE — Ascertainment — Name — Informant — Cross-examination — Resolution — Rules of Evidence. Question as to whether counsel for a defendant charged with receiving stolen goods has a right to ascertain upon cross-examination the name of a police officer's informant is one to be resolved under traditional rules of evidence.
8. WITNESSES — Privilege — Withholding — Name — Informer — Government — Proper But Not Absolute. There is a government's privilege to withhold the name of one furnishing information concerning crime to a law enforcement officer so as to encourage citizens to aid in law enforcement by preserving their anonymity; but such privilege is not absolute and must give way where disclosure of informant's identity is shown to be relevant to the defense or is otherwise essential to a fair determination of the cause.
9. RECEIVING STOLEN GOODS — Attempt — elicit — Name of Informer — Refusal — Government Privilege. In prosecution for crime of receiving stolen goods, attempts to elicit name of informer falls well within government's privilege to withhold its disclosure, inasmuch as there is nothing in record to indicate that name of informer was germane to only real issue in case, namely, did defendant know he was handling stolen goods.
Error to the District Court of Jefferson County, Honorable George G. Priest, Judge.
Frank J. Reinhard, Jr., for plaintiff in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, for defendant in error.
Whaley was convicted by jury of the crimes commonly known as receiving stolen goods and larceny by bailee and in connection therewith he was sentenced to a term of from five to six years in the state penitentiary on each count, the sentences to be served concurrently and not consecutively. Whaley now seeks reversal of the judgment and sentences thus imposed.
The Attorney General concedes that the evidence is legally insufficient to support Whaley's conviction for the crime of larceny by bailee, inasmuch as the People failed to establish, even prime facie, the existence of a bailment, be it a bailment by finding or otherwise. We agree and that particular judgment and sentence must be reversed. There remains then for our consideration Whaley's conviction on the first count of the information which charged him with receiving stolen goods of a value in excess of $1,000. Inasmuch as the sufficiency of the evidence to sustain that verdict is also challenged a brief review of the People's evidence is necessary.
The business office of Randy's Meats, Inc. in Arvada was burglarized by person or persons unknown in the early morning hours of January 30, 1966, which was a Sunday. Entry was gained by breaking a back window. In addition, the company's safe was broken into and approximately $160 and a TV set were missing. Also missing was a refrigerated van truck in which there had been stored over $1,000 worth of frozen food products, including frozen steaks, shrimp and french fries. These items were packaged and bore the following trade names: Randy's Frozen Steaks, Typton Shrimp and L.B. French Fries.
The refrigerated truck was located a few blocks away from the scene of the burglary within a very few hours after the discovery of the burglary. However, all of the frozen food products referred to above had been removed from the truck.
Robert Hudson, hereinafter referred to as Robert, testified that in the early afternoon of January 30, 1966, he received a telephone call from Whaley. Robert had some limited prior acquaintance with Whaley, Robert being a refrigerator serviceman and Whaley a butcher. According to Robert, Whaley stated that he had some frozen foods for sale and inquired as to whether Robert would like to make a purchase of any of the enumerated items. Robert indicated doubt that he wanted to buy, but at the same time indicated that his father, Edwin, might be interested. In any event, Robert and his father shortly thereafter proceeded to drive in separate vehicles to the address given by Whaley.
Hudson's father, Edwin, arrived first. The address given by Whaley was that of the Meadowlark meat market. The Meadowlark incidentally was not the meat market where Whaley was himself employed. Edwin parked at the rear of the Meadowlark, which was closed to the general public, it being a Sunday. Edwin, who was a witness for the People, testified that he and the defendant went into a "backroom" where he picked out the frozen foods which he desired, and for which he paid Whaley the sum of $56. This witness stated that he noticed the labeling of Randy's Meats on the beef which he purchased. The products thus purchased were then loaded in the witness' automobile and he drove off. Edwin was stopped, however, a very short distance away by police officers who had been conducting a "stake-out" of the Meadowlark.
Similarly, Robert himself arrived at the Meadowlark about the time his father was leaving. Whaley reportedly had stated that he didn't have "any storage room" and desired the Robert store some of the frozen products in refrigerated storage space that Robert maintained. Accordingly, Robert also parked in the rear area of Meadowlark, and he and Whaley loaded more of the frozen food items in the former's pickup truck. This witness also noticed the Randy's meat label on certain of the items placed in his vehicle. Robert then drove off and he too was followed and stopped by the police a short distance away. The police officers conducting the stake-out testified that they then observed Whaley load the trunk of his automobile with packaged items, some of which were observed even from a distance to bear the label of Randy's Meats. The police then followed Whaley as he drove off and stopped him after he too had gone only a very short distance.
Representatives of Randy's Meats, Inc. were called to the place where the three vehicles had been stopped and they identified the products taken from Whaley's car, as well as the items removed from the two other vehicles, as belonging to Randy's Meats, Inc., and bearing its labels. An inventory of the products thus taken but ultimately recovered established a value of $1,011.
As Whaley was being taken to jail he made some inquiry of the police officer as to what charges were going to be filed against him. The officer testified that when he informed Whaley that the charges were to be "burglary and receiving" Whaley replied: "Well I don't see burglary but I do see receiving."
[2,3] Whaley contends that there is insufficient evidence to sustain his conviction for the crime of receiving stolen goods. In this regard it is conceded by counsel that Whaley did in fact have stolen goods in his possession, but counsel argues that there is no evidence that Whaley knew that the various items when he had in his possession had in fact been "feloniously stolen, taken and carried away" from Randy's Meats, Inc. It is perhaps true that there was no so-called direct evidence bearing on this point, though Whaley's admission against interest certainly constituted some evidence of guilty knowledge. But in any event guilty knowledge may also be established by circumstantial evidence, as indeed it generally is. Burnham v. People, 104 Colo. 472, 93 P.2d 899. Our analysis of the People's evidence convinces us that there are such facts and circumstances, coupled with Whaley's admission, as would justify the jury in inferring that Whaley knew he was dealing with stolen property. No testimony was offered by Whaley or anyone else in his behalf. Under such circumstances Whaley is now in no position to complain because the jury drew inferences which were unfavorable to him but nonetheless were warranted by the evidence. Schamber v. People, 159 Colo. 102, 410 P.2d 514.
Much is sought to be made of the admission into evidence of People's Exhibit Q, which was a package of Randy's meat. The testimony of the police officer who identified the exhibit was stricken upon motion, but the exhibit was inadvertently received into evidence and viewed by the jury. Actually the trial court erred in striking the testimony of this particular witness; furthermore the exhibit was sufficiently identified by another witness to warrant its reception into evidence. And in any event, we are unable to perceive how any possible error resulting from the fact that the jury was permitted to view one of the products of Randy's Meats could be deemed prejudicial.
The argument that the information was defective and should have been dismissed because the person making the supporting affidavit did not have personal knowledge of all the facts giving rise to the prosecution is without merit. People v. Read, 132 Colo. 390, 288 P.2d 347.
One matter briefly touched on by counsel concerns the refusal of the trial court to compel a police officer called as a witness by the People to divulge the name of a confidential informant. This particular witness testified that about 5 o'clock in the morning on the day in question he received a telephone call from a person known to him who informed him that Randy's Meats, Inc. had been burglarized and also advised him where the stolen food items could be found. As a result of this telephone call the police, after verifying that a burglary had in fact occurred, set up the stake-out referred to.
[5,6] It was in this setting then that counsel for Whaley on cross-examination attempted to ascertain the name of the informant. The trial court sustained the objection to this question and under the circumstances we perceive no error in this regard. It is to be emphasized that Whaley in no way attempts to put in issue the legality of his arrest or the lawfulness of the search and seizure that followed. This then is not the case of an arrest based solely on information given by an informer of unknown reliability. On the contrary, as a result of the information the police by the informant the police made no immediate arrest. Rather, after confirming the fact that a burglary had occurred, they continued their investigation by setting up a stake-out, and the subsequent arrest occurred only after a viewing by the police of the various activities in and around the Meadowlark meat market. Under such circumstances the police indeed had had probable cause to arrest Whaley without a warrant and the subsequent search and seizure was a lawful incident thereto. Moore v. People, 164 Colo. 222, 434 P.2d 132.
[7-9] With the legality of Whaley's arrest and the lawfulness of his search and seizure not being in any manner placed in issue, the question as to whether counsel had a right to ascertain upon cross-examination the name of the police officer's informant is one to be resolved under traditional rules of evidence. Historically, there had long been a so-called informer's privilege, which is perhaps more accurately labeled the government's privilege to withhold the name of one furnishing information concerning crime to a law enforcement officer so as to encourage citizens to aid in law enforcement by preserving their anonymity. See for example, People v. Durr, 28 Ill. 2d 308, 192 N.E.2d 379. For a collation of cases on this subject, see A.L.R.2d 257.
This privilege, however, is not absolute and must give way where the disclosure of the informant's identity is shown to be relevant to the defense or is other wise essential to fair determination of the cause. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In the instant case the attempt to elicit the name of the informer falls well within the government's privilege to withhold its disclosure, inasmuch as there is nothing in the record before us to indicate that the name of the informer is in anywise germane to the only real issue in the case, namely, did Whaley know he was handling stolen property. See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.
The judgment is affirmed as regards the conviction for receiving stolen goods, but reversed as to the conviction and sentence on the count charging him with larceny by bailee.
MR. JUSTICE DAY, MR. JUSTICE HODGES and MR. JUSTICE GROVES concur.