Volume 179 — Colorado Reports

1. <bold>CRIMINAL LAW</bold> — <italic>Trial Strategy — Failure of Acquittal — Incompetence of</italic><italic>Counsel — Speculation.</italic> When trial strategy fails to produce an acquittal, incompetence of counsel cannot be said to exist by way of presumption or by wild speculation. 2. <bold>ATTORNEY AND CLIENT</bold> — <italic>Duty — Service — Accused — Counsellor and</italic><italic>Advocate.</italic> The basic duty which the lawyer has to the accused is to serve as counsellor and advocate with courage and devotion and to the utmost of his learning and ability. 3. <bold>COURTS</bold> — <italic>United States Supreme Court — Loper v. Beto — Convictions —</italic><italic>Impeachment — Counsel — Retroactive.</italic> The United States Supreme Court case of <italic>Loper v. Beto</italic> — which requires that convictions which will be used for impeachment purposes must not have been obtained without the guiding hand of counsel — has been given retroactivity in its application. 4. <italic>United States Supreme Court — Burgett v. Texas — Loper v. Beto —</italic><italic>Applicability.</italic> The pronouncements of the United States Supreme Court in<italic>Burgett v. Texas</italic> and <italic>Loper v. Beto</italic> are not applicable unless the defendant has made a prima facie showing that his convictions were constitutionally infirm by reason of want of counsel or a knowing and intelligent waiver of counsel. 5. <bold>ATTORNEY AND CLIENT</bold> — <italic>Defense Counsel — Evidence — Strategy.</italic> Defense counsel stands as captain of the ship in ascertaining what evidence should be offered and what strategy should be employed in the defense of the case. 6. <bold>CRIMINAL LAW</bold> — <italic>Right to Counsel — Constitution — Guarantee — Mistakes</italic><italic>of Strategy — Negative.</italic> The constitutional right to the assistance of<page_number>Page 32</page_number> counsel is not a guarantee against mistakes of strategy and judgment in the course of the trial. 7. <bold>ASSAULT AND BATTERY</bold> — <italic>Deadly Weapon — Counsel — Strategy — Effective —</italic><italic>Fair Trial.</italic> In prosecution for assault with a deadly weapon — when analyzed in the light of defendant's claim of incompetency of counsel — the facts of the case reflect the trial strategy that was employed and support the conclusion that defendant was provided effective counsel and was given a fair trial. 8. <italic>Deadly Weapon — Shot at Landlord — Sufficiency of Evidence.</italic> In prosecution for assault with a deadly weapon, record reflects sufficient evidence, including the fact that defendant shot at his landlord, to establish the charge.

1. <bold>AUTOMOBILES</bold> — <italic>Tail Light — Not Functioning — Prior to Arrest —</italic><italic>Stopped — — Return to Police Car — Determination — License — Expired —</italic><italic>Procedure — Proper.</italic> Where defendant, prior to her arrest, was stopped because right tail light on her car was not functioning, and upon being asked to produce her operator's license told policemen that her driver's license had expired, whereupon she was then asked to return with officers to police car so that they could determine whether her license had expired or had been suspended or revoked, <italic>held</italic>, this procedure, as such, was wholly proper and did not infringe upon any rights of the defendant. 2. <bold>ARREST</bold> — <italic>Tail Light — Not Functioning — Stopped — Officer — Notice —</italic><italic>Needle Mark — Plain View — Reliable Informant — User — Probable Cause —</italic><italic>Warrantless Search — Inventory.</italic> Where officer, after stopping defendant because tail light on automobile was not functioning and while awaiting report as to status of her driver's license, noticed fresh needle mark on her right wrist in plain view, and who knew defendant from past encounters and had information from reliable informant, as well as from fellow officer, that defendant was a narcotics user, <italic>held</italic>, under these circumstances, officer had probable cause to arrest defendant, and subsequent warrantless search of defendant's purse and seizure of marijuana cigarettes would be upheld either as search incident to arrest or as inventory procedure conducted prior to incarceration.

1. <bold>JURY</bold> — <italic>Prior Service — Statute — Meaning.</italic> The plain meaning of C.R.S. 1963, 78-5-2, relating to prior service by jurors, is that a juror who has served at a prior term of any court of record, which term was within one year of trial in question, is excusable for cause on this ground. 2. <italic>Jurors — Prior Service — Same Term — Challenge — Statute —</italic><page_number>Page 116</page_number><italic>Negative.</italic> Jurors who had served on other juries the week prior to defendant's trial but during the same term of court were not subject to successful challenge under C.R.S. 1963, 78-5-2, relating to prior service of jurors. 3. <italic>Exclusion — Persons — Unable — Death Penalty — Scruples — Proper.</italic> It is not error to exclude from the jury those persons who state that they would not be able to consider and impose the death penalty under any circumstances because of religious, ethical or moral scruples against the death penalty. 4. <bold>CRIMINAL EVIDENCE</bold> — <italic>Co-defendant — Elicit — Answers — Prejudice —</italic><italic>Defendant — Testimony — Consideration — Entire Case.</italic> Where the prosecution puts a co-defendant or co-conspirator on the stand and directly and deliberately elicits from him answers concerning his guilty plea to charges arising out of the same event that defendant is charged with, such testimony may be prejudicial and inadmissible against defendant, but this testimony must be considered in light of the entire case in order to determine its prejudicial effect. 5. <bold>HOMICIDE</bold> — <italic>Evidence — Overwhelming — Reference — Guilty Plea —</italic><italic>Co-conspirator — Harmless Error — Impeach — Credibility.</italic> In view of the fact that the evidence of defendant's guilt of murder was so overwhelming, the reference to the guilty plea by the co-conspirator, who was placed on the stand by the prosecution, was harmless error; especially, since defense counsel questioned such witness about the guilty plea in an effort to impeach his credibility.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Quantity of Items — Listed — Warrant — Seized —</italic><italic>Bearing — Validity — Exploratory — Negative.</italic> The quantity of items listed in a search warrant or the quantity of items seized during the execution of a warrant does not necessarily have any bearing on the validity of the search itself in the face of an allegation of exploratory search and seizure; and this is particularly true where a business record system is allegedly being used in the commission of a crime. 2. <italic>Exploratory — Quantity — Negative — Prevention — Indiscriminate —</italic><italic>Privacy.</italic> The rule against general exploratory searches is not aimed against quantity, nor even designed to protect property quantitatively, but, instead, is designed to prevent <italic>indiscriminate</italic> searches and seizures that invade privacy. 3. <italic>Business Records — Non-exploratory — Many Documents — Prior Date —</italic><italic>Suppression — All — Unjustified.</italic> Where officers executing search warrant entered defendant's premises for purpose of seizing specific business records and attempted in good faith to obtain documents relating to prescribed period, and where search was conducted in a manner reasonably calculated to uncover such records, <italic>held</italic>, under such circumstances, general<page_number>Page 374</page_number> tenor of search was not that of an exploratory search for evidence not specifically related to the warrant; and the fact that many of the documents seized were dated prior to period specified in warrant did not justify trial court's ruling suppressing all documents seized in search. 4. <bold>CRIMINAL LAW</bold> — <italic>Business Records — Warrant — Search and Seizure — Theft</italic><italic>of State Funds — Violation — Fifth Amendment — Negative.</italic> Where officers, pursuant to warrant, conducted search of defendant's premises for purpose of seizing specific business records of defendant who was charged with theft of state funds by filing false motor fuel tax refund claims, <italic>held</italic>, such search and seizure did not violate defendant's privilege against compulsory self-incrimination under Fifth Amendment where seized records were allegedly being used in furtherance of crime with which he was charged.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Transfer of Case — Lack of Permission — Failure to</italic><italic>File Suit — Failure to Reinstate Case — Public Reprimand.</italic> Where attorney transferred case to another attorney without client's permission after accepting employment and docket fee from client, failed to file suit until over three years after being retained, and failed to have case reinstated after it was dismissed for failure to prosecute, <italic>held</italic>, as such, all of these actions constituted gross negligence and unprofessional conduct warranting public reprimand for dereliction of duty. 2. <bold>ATTORNEY AND CLIENT</bold> — <italic>Automobile — Fee — Stolen — Answer — Negative —</italic><italic>Failure to Inquire Further — Breach of Obligation.</italic> Even though attorney asks client whether automobile given to attorney as a fee was stolen and receives a negative answer, nevertheless, attorney's failure to inquire further as to actual source of automobile, may constitute breach of attorney's obligation as a member of the bar.

1. <bold>COLLEGES AND UNIVERSITIES</bold> — <italic>Institute — State — Constitution.</italic> Under Colo. Const. art. VIII, § 5, the University is an institution of the State of Colorado. 2. <italic>Board of Regents — Control — Funds — Constitution — City — Compel —</italic><italic>Collection Admissions Tax — Negative.</italic> In view of the fact that the state constitution gives the board of regents exclusive control and direction of all funds of, and appropriations to, the university, city cannot compel the regents to collect admissions tax upon charges made to attend public events. 3. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Home Rule City — Subdivision of State —</italic><italic>Constitution.</italic> Even with all the powers granted home rule cities under Colo. Const. art XX § 6, a home rule city is still a subdivision of the state.<page_number>Page 421</page_number> 4. <italic>Compel — State — Collection — Taxes — Negative.</italic> No municipality, absent statutory authority, can compel the state or its officials to collect municipal taxes. 5. <bold>TAXATION</bold> — <italic>Home Rule City — State Education — Prohibition — Tax —</italic><italic>Invalid — University — Lectures — Concerts.</italic> Since home rule authority of a city does not permit it to tax a person's acquisition of education furnished by the state, admissions tax is therefore invalid when applied to university lectures, dissertations, art exhibitions, concerts, and dramatic performances. 6. <bold>COLLEGES AND UNIVERSITIES</bold> — <italic>Revenue — Change — Educational — Commercial</italic><italic>— Negative.</italic> The production of revenue from a university activity does not change its nature from an educational endeavor to a commercial venture. 7. <italic>University Football Games — Home Rule City — Unrelated — Educational</italic><italic>Process — Tax — Valid.</italic> Absent a showing that university football games held on campus are so related to the educational process that its devotees may not be taxed by home rule city, reviewing court is of the view that it should not make a finding that it is so related, accordingly, the validity of the tax as applied to football is affirmed.