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People v. Patterson

Supreme Court of Colorado. En Banc
Feb 18, 1975
187 Colo. 431 (Colo. 1975)

Summary

sentencing remand may be proper even though lesser-included offense was not charged to jury; court reasoned defendant has been given his day in court and his guilt of lesser-included offense is implicit and part of jury's verdict on greater offense

Summary of this case from Haynes v. State

Opinion

No. 26226

Decided February 18, 1975.

Defendant was convicted of selling narcotic drugs with intent to induce or aid the purchaser to unlawfully use or possess narcotic drugs and appealed.

Reversed

1. CRIMINAL LAWLack of Abuse — Denial — Right to Impeach — Review — Affirm. If trial judge did not abuse his discretion in denying defendant the right to impeach his own witness, reviewing court would be compelled to affirm the denial.

2. WITNESSESImpeach — Own Witness — Prohibited — Surprise or Hostility — Negative. A defendant may not call a witness and bring out adverse testimony and then seek to impeach his own witness when he has not shown either surprise or hostility.

3. Informant — Defense Witness — Proof — Hostile — Surprise — Lacking — Right to Impeach — Denial — Proper. Where defendant called informant as a defense witness but made no effort to prove that informant was hostile or to show surprise, held, under such circumstances, trial judge did not abuse his discretion and properly denied defense counsel the right to impeach his own witness.

4. DRUGS AND DRUGGISTSSale — Police Officer — Seller — Knowledge. The statutory exemption for sale of dangerous drugs to a police officer could be activated only when the seller knew that he was dispensing the drugs to a police officer in his official capacity.

5. Undercover Agent — Intent of Seller — Statute — Applicability. The participation of an undercover agent in a narcotics transaction does not prevent C.R.S. 1963, 48-5-20(1)(a)(c) from being applicable, since it is the seller's intent in effecting the sale which governs the transaction.

6. Sell With Intent — Induce Purchaser — Use or Possess — Specific Intent — Conviction — Statute. To effect a conviction under statute, C.R.S. 1963, 48-5-20(1)(a)(c), which makes it unlawful to sell narcotic drugs with intent to induce or aid the purchaser to unlawfully use or possess narcotic drugs, the issue to be resolved — in the affirmative — is whether defendant had the specific intent to assist or induce the purchaser to use or possess cocaine or heroin.

7. Sell With Intent to Induce — Unlawful Use — Lesser Included Offense — Unlawful Sale — Legislative Intent — Deal Severely — Drug Pusher. Legislative intent — in enacting statute making it unlawful to sell narcotic drugs with intent to induce or aid the purchaser to unlawfully use or possess narcotic drugs and in enacting lesser included offense of unlawful sale of a narcotic drug — was to deal more severely with the drug pusher than with the person who effectuates a sale in response to an unsolicited inquiry.

8. Specific Intent — Sell With Intent to Induce — Unlawful Use — Proof — Initiated and Solicited Sale. In order to prove specific intent under the statute, C.R.S. 1963, 48-5-20(1)(a)(c), which makes it unlawful to sell narcotic drugs with intent to induce or aid the purchaser to unlawfully use or possess narcotic drugs, the prosecution must prove that the defendant initiated and solicited the sale in question.

9. Specific Intent — Induce Purchaser — Unlawfully Use — Narcotics — Evidence — Insufficient. Evidence was insufficient to show that defendant had the specific intent to aid or induce the purchaser to unlawfully use or possess narcotics.

10. Unlawful Sale — Conviction — Narcotic Drugs — Resentence — Selling With Intent to Induce — Reversed. Although defendant's conviction for selling narcotic drugs with intent to induce or aid purchaser to unlawfully use or possess narcotic drugs was reversed on appeal due to insufficiency of evidence, nevertheless, record clearly established all of the elements of an unlawful sale of narcotics; accordingly, reviewing court, as authorized by C.A.R. 1(d), 35(e), and Crim. P. 31(c), modifies jury verdict and judgment and remands cause to trial court with directions to enter judgment of conviction of crime of unlawful sale of narcotic drugs and defendant should then be resentenced in accordance with the provisions of C.R.S. 1963, 48-5-2.

11. Selling With Intent to Induce — Unlawful Sale — Lesser Included Offense — Day in Court — Failure to Instruct. Where all the elements of the lesser included offense of unlawful sale of a narcotic drug were included in the more serious offense of selling narcotics with the specific intent to aid or induce the purchaser in unlawfully using or possessing narcotic drugs, reviewing court is of the view that defendant has been given his day in court; all the elements of the lesser included offense are included in the more serious offense which the defendant faced before the jury.

12. CRIMINAL LAWVerdict — Sale of Narcotic Drugs — Implicit — Selling With Intent to Induce. Defendant's guilt of lesser included offense of sale of a narcotic drug was implicit and part of the jury's verdict of guilty for selling narcotic drugs with intent to induce or aid purchaser to unlawfully use or possess narcotic drugs.

Appeal from the District Court of El Paso County, Honorable Robert W. Johnson, Judge.

John P. Moore, Attorney General, John E. Bush, Deputy, Donna A. Maranchik, Assistant, for plaintiff-appellee.

Daniel B. Mohler, for defendant-appellant.


The defendant, Wardell Harden Patterson, Jr., has appealed from his conviction of selling narcotic drugs with the intent to induce or aid the purchaser to unlawfully use or possess narcotic drugs. C.R.S. 1963, 48-5-20(1)(a)(c). A two-count information charged that the defendant sold both heroin and cocaine with the specific intent set forth in the statute. The jury convicted the defendant on both counts. On appeal, the defendant contends that (1) he was improperly denied the right to impeach a defense witness; (2) he was charged pursuant to the wrong statutory provision; and (3) the evidence was insufficient to sustain a conviction. The record establishes that the evidence was insufficient to sustain a conviction of the crime charged, but was sufficient to prove the lesser included offense of unlawful sale of a narcotic drug. C.R.S. 1963, 48-5-2. Accordingly, we reverse and remand with directions to the trial court.

I.

The Transactions in Issue

An undercover agent, Officer William Robertson, with the assistance of an informant, obtained delivery of both cocaine and heroin from the defendant. The informant lived in the same house with the defendant and several other narcotic users. The undercover agent went to the house and was introduced to the defendant by the informant. In the presence of the informant, the defendant agreed to sell the undercover agent one gram of brown cocaine for $50. After the price was agreed to, the defendant left with the undercover agent in the agent's car. The agent gave the defendant $50 to pay for the cocaine. Upon receipt of the money, the defendant left the agent's car, picked up the informant in his own car, returned to the place where the agent was parked, and caused the informant to deliver the cocaine to the undercover agent. Later, when the agent sought to acquire a larger amount of cocaine, the defendant asserted that he could not obtain any more cocaine, but agreed to sell the agent 1/4 teaspoon of heroin. Twenty-five dollars was paid for the heroin, and the defendant caused the heroin to be delivered to the agent.

II.

Impeachment of a Defense Witness

[1] The informant in this case was not unknown. With the exception of the agent, all those who were present when the transactions took place were narcotics users. The prosecution's case was presented without calling the informant as a witness. As part of the defendant's case-in-chief, the informant was called as a defense witness. Defense counsel made no effort to prove that the informant was hostile or to show surprise, but contends that the defense should have been allowed to show that the informant had a poor reputation for truth and veracity. The trial judge held that the defense counsel could not impeach his own witness. On appeal, the trial judge's refusal to allow defense counsel the right to impeach his own witness is asserted as error. We must affirm if the trial judge did not abuse his discretion in denying the defendant the right to impeach his own witness. Worthy v. United States, 352 F.2d 718 (D.C. Cir. 1965).

[2] It is Hornbook law that a defendant may not call a witness and bring out adverse testimony and then seek to impeach his own witness when he has not shown either surprise or hostility. Beasely v. United States, 218 F.2d 366 (D.C. Cir. 1954). See also Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970); Land v. People, 171 Colo. 114, 465 P.2d 124 (1970); Bustamonte v. People, 157 Colo. 146, 401 P.2d 597 (1965); McBrayer v. Zordel, 127 Colo. 438, 257 P.2d 962 (1953).

[3] The trial judge did not abuse his discretion and properly denied defense counsel the right to impeach his own witness.

III.

The Statutory Offense

[4-6] The defendant asserts that he was charged and convicted of violating the wrong statute. He claims that the offense which he committed, if any, was possession or sale of a narcotic drug (C.R.S. 1963, 48-5-2), and not the more serious crime which the legislature has defined in C.R.S. 1963, 48-5-20(1)(a)(c). The defendant was convicted of selling narcotics with the specific intent to induce or aid the purchaser in unlawfully using or possessing narcotic drugs. The defendant argues that he cannot be guilty of the crime charged, because the sale was to an undercover agent who cannot fall within that class of purchasers that would unlawfully possess or use the narcotics. We answered the defendant's argument in People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973). In Lee, we construed 1971 Perm. Supp., C.R.S. 1963, 48-8-3, and declared that the statutory exemption for sale of dangerous drugs to a police officer could be activated only when the seller knew that he was dispensing the drugs to a police officer in his official capacity. The same reasoning dictates the conclusion in this case. The participation of an undercover agent in a narcotics transaction does not prevent C.R.S. 1963, 48-5-20(1)(a)(c) from being applicable. As we said in Lee, it is the seller's intent in effecting the sale which governs the transaction. The issue is whether the defendant had the specific intent to assist or induce the purchaser to use or possess cocaine or heroin. See Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970).

Thus, the issue must be determined in accordance with the evidence which appears in the record.

IV.

Sufficiency of the Evidence

[7-12] The defendant's motion for a judgment of acquittal was denied. He asserts that the evidence offered to show that he had the specific intent to aid or induce the purchaser or unlawfully use or possess narcotics was insufficient. We agree, but conclude that the evidence was sufficient to prove the lesser included offense of unlawful sale of a narcotic drug. See People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974).

In People v. Bowers, 187 Colo. 233, 530 P.2d 1282 we construed the statutory provisions which are in issue in this case. In Bowers, we concluded that the word "aid," as used in the statute, should be equated with "induce," and that the statute is aimed at the drug pusher who intentionally seeks to increase and broaden his nefarious activities by encouraging others to use or possess narcotics. It was the clear legislative intent to deal more severely with the drug pusher than with the person who effectuates a sale in response to an unsolicited inquiry. Compare C.R.S. 1963, 48-5-2 with C.R.S. 1963, 48-5-20(1)(a)(c).

In order to prove the specific intent set forth in C.R.S. 1963, 48-5-20(1)(a)(c), the prosecution must prove that the defendant initiated and solicited the sale in question. See People v. Bowers, supra.

In the instant case, there is no evidence of any kind which would show, or support the conclusion of a reasonable mind, that the defendant harbored the requisite specific intent at the time the sale was made. It is clear that the undercover agent initiated the sale and caused the sale of both the cocaine and the heroin to occur.

Accordingly, the trial judge erred in submitting the more serious offense to the jury. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). The evidence which was offered was, however, sufficient to prove a violation of C.R.S. 1963, 48-5-2. The record clearly establishes all the elements of an unlawful sale of narcotics. As authorized by C.A.R. 1(d), 35(e), and Crim. P. 31(c), we modify the jury verdict and judgment and remand to the trial court with directions to enter a judgment of conviction of the crime of unlawful sale of narcotic drugs. The defendant should then be resentenced in accordance with the provisions of C.R.S. 1963, 48-5-2. People v. Bowers, 187 Colo. 233, 530 P.2d 1282. Compare United States v. Thomas, 444 F.2d 919 (D.C. Cir. 1971); United States v. Comer, 421 F.2d 1149 (D.C. Cir. 1970); United States v. Bryant, 420 F.2d 1327 (D.C. Cir. 1969); Allison v. United States, 409 F.2d 445 (D.C. Cir. 1969); Austin v. United States, 382 F.2d 129 (D.C. Cir. 1967); State v. Braley, 224 Ore. 1, 355 P.2d 467 (1960). Cf. Foster v. People, 1 Colo. 293 (1871).

Even though the jury was not instructed as to the lesser included offense, the defendant has been given his day in court. All the elements of the lesser included offense are included in the more serious offense which the defendant faced before the jury. His guilt of the lesser included offense is implicit and part of the jury's verdict. Walker v. United States, 418 F.2d 1116 (D.C. Cir. 1969); Kelly v. United States, 370 F.2d 227 (D.C. Cir. 1966).

Accordingly, the defendant's conviction is reversed and the case is remanded to the trial court with the directions to enter a judgment of conviction against the defendant for unlawful sale of narcotic drugs and to thereafter resentence the defendant. C.R.S. 1963, 48-5-2.

MR. JUSTICE GROVES specially concurring.


Summaries of

People v. Patterson

Supreme Court of Colorado. En Banc
Feb 18, 1975
187 Colo. 431 (Colo. 1975)

sentencing remand may be proper even though lesser-included offense was not charged to jury; court reasoned defendant has been given his day in court and his guilt of lesser-included offense is implicit and part of jury's verdict on greater offense

Summary of this case from Haynes v. State

sentencing remand may be proper even though lesser included offense was not charged to jury; court reasoned defendant has been given his day in court and his guilt of lesser included offense is implicit and part of jury's verdict on greater offense

Summary of this case from State v. Brown

In Patterson, supra, the police, with the assistance of an informant, made a purchase of one gram of cocaine for $50 and 1/4 teaspoon of heroin for $25 from the defendant.

Summary of this case from People v. Hodges

In Patterson, the trial court had denied the defendant's motion for judgment of acquittal on a charge of selling narcotic drugs with the intent to induce or aid the purchaser to unlawfully use or possess narcotic drugs.

Summary of this case from People v. Scott
Case details for

People v. Patterson

Case Details

Full title:The People of the State of Colorado v. Wardell Harden Patterson, Jr

Court:Supreme Court of Colorado. En Banc

Date published: Feb 18, 1975

Citations

187 Colo. 431 (Colo. 1975)
532 P.2d 342

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