Volume 184 — Colorado Reports

1. <bold>CONSPIRACY</bold> — <italic>Narcotics — Assault — Conversations — Undercover Agents —</italic><italic>Admissible.</italic> Where defendant was charged with two counts of assault with intent to murder and one count of conspiracy to sell narcotic drugs, admission into evidence of substance of conversations which were between defendant and undercover agents and which occurred more than one month prior to date of charges was not error. 2. <bold>CRIMINAL EVIDENCE</bold> — <italic>Link — Chain of Events — Admissible — Other</italic><italic>Crimes.</italic> All the facts which are necessary to prove the crime charged in the information, when linked to the chain of events which supports that crime, are admissible; and this is true even though the evidence shows the commission of other crimes not presented in the information. 3. <bold>CRIMINAL LAW</bold> — <italic>Mistrial — Denial — Question — Agent — Prognosis —</italic><italic>Wounds — Jury — Disregard — Stricken.</italic> Where no answer was given to question which was propounded by district attorney to agent and which inquired as to whether agent knew prognosis for recovery from wounds he received when shot by defendant, and jury was admonished to disregard question, and general instruction was given that informed jury that evidence stricken was the same as never received, <italic>held</italic>, under the circumstances, trial court's denial of request for mistrial was not error. 4. <italic>Mistrial — Drastic Remedy — Prejudicial Conduct.</italic> A mistrial is among the most drastic of remedies for prejudicial conduct. 5. <italic>Mistrial — Discretion of Court.</italic> A motion for a mistrial is addressed to the sound discretion of the trial court. 6. <italic>Mistrial — Prejudice — Justification.</italic> In order to justify granting a motion for mistrial for prejudicial conduct, the prejudice must be such that its effect on the jury could not be remedied by a means less than a mistrial. 7. <bold>CRIMINAL EVIDENCE</bold> — <italic>Answer — Stricken — Jury — Disregard — Presumed.</italic> Where an answer is stricken, it must be presumed that the jury has disregarded that evidence. 8. <italic>Answer — Stricken — Jury — Disregard — Lack of Objection — Earlier —</italic><italic>— Prejudice — Negative.</italic> Where doctor's answer was ordered stricken, jury<page_number>Page 34</page_number> admonished to disregard the stricken answer, and defense counsel made no objection when similar testimony was given earlier, <italic>held</italic>, these circumstances eliminate any hint of prejudice arising from the stricken testimony. 9. <bold>HOMICIDE</bold> — <italic>Testimony of Doctor — Wounds — Undercover Narcotics Agent —</italic><italic>Relevant — Charges.</italic> Where doctor's testimony as to wounds received by undercover narcotics agent shot by defendant was a recitation of what occurred as a result of shooting, <italic>held</italic>, as such, it was not irrelevant in prosecution on charges of assault with intent to murder. 10. <bold>WITNESSES</bold> — <italic>Doctor — Bullet Wounds — Treatment — Qualified — Victim —</italic><italic>Caliber Bullet.</italic> Doctor who had treated over one thousand bullet wound victims with wounds from all caliber of bullets was competent to testify that victim was shot by .45 caliber bullet. 11. <italic>Expert — Competency — Determination — Trial Court.</italic> The competency of an expert is for the trial court to determine, and will not be grounds for reversal absent a clear showing of abuse of discretion. 12. <bold>CRIMINAL EVIDENCE</bold> — <italic>Silencer — Admission — Proper — Testimony —</italic><italic>Borrow — Weapon — Protection.</italic> Where defendant testified that in order to protect himself he borrowed pistol and silencer two or three weeks before the shooting, <italic>held</italic>, under the circumstances, trial court did not err in admitting the silencer into evidence; the silencer was not irrelevant evidence.

1. <bold>THEFT</bold> — <italic>Extortion — Threats.</italic> One means for committing theft is by the use of threats or extortion. 2. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Theft — Lesser Included — Robbery —</italic><italic>Negative.</italic> Theft is not a lesser included offense of robbery. 3. <bold>ROBBERY</bold> — <italic>Failure to Commit — Theft — Committed — Conviction of Robbery</italic><italic>— Acquittal.</italic> Where defendant committed the crime of theft and where defendant was charged with and convicted of robbery, a crime which he did not commit, <italic>held</italic>, under the circumstances, reviewing court reverses the conviction and remands with directions that defendant's motion for judgment of acquittal as to the robbery charge be granted.

1. <bold>JUDGMENT</bold> — <italic>Default — Final — Jurisdiction — Collateral Attack —</italic><italic>Improper — Strangers — Parties.</italic> Where a default judgment has been entered and made final, and where the court at the time judgment was entered had jurisdiction over the parties and the subject matter, <italic>held</italic>, under such circumstances, the judgment was not a proper subject of collateral attack either by strangers to the original action or by the parties. 2. <italic>Default — Ordinary — Legal Effect.</italic> A judgment, whether obtained by default or in the ordinary course of proceedings, is entitled to complete legal effect. 3. <italic>Default — Collateral Attack — Lack of Jurisdiction.</italic> A default judgment may only be the subject of collateral attack when the trial court lacked jurisdiction over the parties or the subject matter.<page_number>Page 113</page_number>

1. <bold>ARREST</bold> — <italic>Fellow-Officer Rule — Probable Cause — Informer.</italic> Under the fellow-officer rule it is not necessary for the arresting officer to know of the reliability of the informer or to be, himself, in possession of information sufficient to constitute probable cause, provided he acts upon the direction or as a result of communication with a brother officer and provided that the police as a whole are in possession of information sufficient to constitute probable cause. 2. <italic>Citizen-Informant — Source of Information — Information — Reliable —</italic><italic>— Prosecution — Credibility — Reliability — Unnecessary.</italic> When the source of the information relied upon by policeman in making an arrest is a<page_number>Page 226</page_number> citizen-informant who was an eyewitness to the crime and is identified, the information is presumed to be reliable, and the prosecution is not required to establish either the credibility of the informant or the reliability of his information. 3. <italic>Citizen-Informant — Fellow-Officer Rule — Robbery — Liquor Store —</italic><italic>Information — Reliable — Probable Cause — Seizure of Evidence.</italic> Where eyewitnesses to the crime, all of whom were identified, supplied the information which led to defendant's arrest, the presumption that the information supplied is reliable, coupled with the actual facts which the eyewitnesses related to the police, were sufficient to support the belief by a man of reasonable caution and prudence that defendant was one of the two men who robbed the liquor store; and under the circumstances, the information provided by the citizen-informant, buttressed by the fellow-officer rule, provided the arresting police officer the requisite probable cause to justify the custodial arrest and seizure of incriminating evidence as an incident of that arrest. 4. <bold>WITNESSES</bold> — <italic>Foreclose — Use — Prior Felony Convictions — Discretion —</italic><italic>Negative — Statute.</italic> Under decisions interpreting C.R.S. 1963, 154-1-1, a trial judge does not have discretion to foreclose the use of prior felony convictions to impeach a defendant's testimony.

1. <bold>RECORDS</bold> — <italic>Public — Access — Special Interest — Requirement — Negative.</italic> Under 1969 Perm. Supp., C.R.S. 1963, 113-2-1, <italic>et seq.</italic>, there is no requirement that a person seeking access to public records show a special interest in those records in order to be permitted access thereto. 2. <italic>Open Records Act — Legislative Intent.</italic> In construing the Open Records Act, 1969 Perm. Supp., C.R.S. 1963, 113-2-1, <italic>et seq.</italic>, Supreme Court is guided by the clear legislative intent manifested in the declaration of policy, namely, that all public records are to be open for inspection except as provided for in the Act itself or otherwise specifically provided by law. 3. <italic>Open Records Act — Autopsy Reports — Inspection — Prohibited —</italic><italic>Court Order — Injury — Public Interest.</italic> Autopsy reports are not within the investigatory files exception of the Colorado Open Records Act, and inspection of a public record may be prohibited by order of any court; the Act provides that the custodian of a record may apply to a district court to prevent disclosure of an otherwise unexempted record when he feels that disclosure would do substantial injury to the public interest. 4. <italic>Custodian — Denial of Inspection — Applicant — Request — Grounds of</italic><italic>Denial — Statement Must Be Furnished.</italic> When the custodian denies inspection of a particular report which is part of the public records, the applicant<page_number>Page 289</page_number> may request a written statement of the grounds of denial, which statement shall cite the law or regulation under which access is denied, and a written statement must be furnished forthwith. 5. <italic>Open Records Act — Exceptions — Specific.</italic> Colorado Open Records Act requires that exceptions be <italic>specifically</italic> provided by law. 6. <italic>Vital Statistics Act — Encompass — Autopsy Reports — Negative.</italic> Vital Statistics Act does not encompass autopsy reports, and such reports are not privileged against inspection and disclosure as vital statistics records. 7. <italic>Open Records Act — Autopsy Reports — Public — Open to Inspection —</italic><italic>Exceptions.</italic> With reference to the Open Records Act, it was the legislative intent to classify autopsy reports as public records open to inspection subject only to statutory exceptions and qualifications. 8. <italic>Autopsy Reports — Reference — Statutes — Imply — Exception —</italic><italic>Negative.</italic> In view of the fact that there is no specific reference to autopsy reports concerning tuberculosis or venereal disease in the pertinent statutes, reviewing court — in the absence of such reference — will not imply an exception to the Open Records Act. 9. <italic>Open Records Act — Lack of Specific Reference — Imply — Exception —</italic><italic>Criminal Statute — Negative.</italic> Without specific reference to the Open Records Act, reviewing court will not imply an exception to that Act from a criminal statute.

1. <bold>ATTORNEY AND CLIENT</bold> — <italic>Administrative Proceeding — Employee or</italic><italic>Employer — Rights — Notice to Attorneys.</italic> Where the parties, whether employee or employer, are represented in the administrative proceeding under consideration by attorneys of record, notice of decisions affecting the substantial rights of the parties must be given to their attorneys. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Procedural Due Process — Fairness — Notice —</italic><italic>Hearing — Decisions.</italic> The essence of procedural due process is fundamental fairness, and this embodies adequate advance notice and an opportunity to be heard prior to state action resulting in deprivation of a significant property interest; and it likewise entitles a litigant to timely notice of decisions which have adjudicated his property interests, in relation to available appellate remedies. 3. <italic>Procedural Due Process — Quasi-Judicial — Property Right —</italic><italic>Infringement.</italic> Essential principles of procedural due process apply to quasi-judicial proceedings where a property right is subject to a direct and material infringement. 4. <bold>ATTORNEY AND CLIENT</bold> — <italic>Entry of Appearance — Notices — Notice of</italic><italic>Decision — Should Be Given — Attorney of Record.</italic> When a client has employed an attorney to present his defense to claims in litigation, and notice of<page_number>Page 335</page_number> this representation by entry of appearance has been given to the opposing party and the court, or other adjudicatory body, all notices required to be given in relation to the matters in controversy, including notice of the decision and entry thereof, should be given to the attorney of record. 5. <italic>Actions — Binding.</italic> A client is bound by the actions of his attorney. 6. <italic>Notice — Denial — Unfairness.</italic> If the attorney through no fault of his own is denied notice of the critical determination in the case, and by reason thereof fails to take procedural steps necessary to preserve his client's rights, fundamental unfairness results. 7. <italic>Failure to Notify — Decisions — Procedural Due Process — Negative.</italic> Procedural due process cannot be satisfied when counsel, upon whom a client is entitled to rely, is not notified of decisions affecting his client's interests. 8. <bold>CONSTITUTIONAL LAW</bold> — <italic>Due-Process — Qualify — Statutory Enactments.</italic> Due-process requirements qualify statutory enactments, which must be interpreted, if possible, so as to conform to constitutional standards. 9. <bold>UNEMPLOYMENT COMPENSATION</bold> — <italic>Award — Notice to Employer — Lack of Notice</italic><italic>to Attorney — Denial of Appeal — Denial of Due Process.</italic> Where notice of decision of referee granting claimant full award of unemployment benefits was given to employer without notification to employer's attorney of record, <italic>held</italic>, this, as such, was insufficient; and employer was denied due process when it was denied its right of appeal by reason of the fact that its attorney was not notified in time to give timely notice of appeal.

1. <bold>TRESPASS</bold> — <italic>Sue — Right — Trespasser — Statutory Power — Eminent</italic><italic>Domain.</italic> A landowner has a right to sue in trespass even though the trespasser may have the statutory power of eminent domain with respect to the land on which the trespass occurs. 2. <bold>EMINENT DOMAIN</bold> — <italic>Inverse Condemnation — Landowner — Assert — Claim.</italic> Only a landowner may assert a claim in inverse condemnation. 3. <bold>TRESPASS</bold> — <italic>Trespasser — Eminent Domain — Refusal — Landowner — Sue In</italic><italic>Trespass — Rather Than — Inverse Condemnation.</italic> Where trespasser — which has power of eminent domain — refuses to promptly initiate eminent domain proceedings, landowner has right to elect to sue in trespass rather than in inverse condemnation. 4. <italic>Trespasser — Refusal to Condemn — Landowner — Damages — Actual —</italic><italic>Special — Exemplary.</italic> Where trespasser — which had power of eminent domain — — refused to condemn land over which it was trespassing, landowner was entitled to bring an action to recover his actual damages and any special damages incurred as a result of the trespass, including litigation costs, and to recover exemplary damages. 5. <bold>INSTRUCTIONS, CIVIL</bold> — <italic>Trespass — Inverse Condemnation — Combination —</italic><italic>Inapplicable — Reversal.</italic> Where landowner attempted to proceed at trial on<page_number>Page 361</page_number> the theory of trespass, but trial court combined elements of measure of damages of a trespass action and inverse condemnation action in his instructions, so that verdict submitted was not applicable to either trespass or inverse condemnation, <italic>held</italic>, under these circumstances, there was error requiring a reversal of judgment. 6. <bold>EMINENT DOMAIN</bold> — <italic>Inverse Condemnation — Constitution</italic>. An inverse condemnation action is based on Article II. Section 15 of the Colorado Constitution. 7. <italic>Inverse Condemnation — Takings — Constitution.</italic> Since an inverse condemnation action is based on the "takings" clause of the Colorado Constitution, it is to be tried as if it were an eminent domain proceeding. 8. <bold>JURY</bold> — <italic>Inverse Condemnation — Freeholders — Damages or Compensation.</italic> Landowner seeking redress after the fact in an inverse condemnation action may demand a jury of freeholders to determine damages or compensation to be awarded. 9. <bold>EMINENT DOMAIN</bold> — <italic>Jury — Inverse Condemnation — Lack — Ordinary</italic><italic>Action — — Both — Same Lawsuit — Prohibited.</italic> In view of the requirement of a jury of freeholders in an inverse condemnation action and the lack of such requirement in an ordinary civil action, an inverse condemnation claim cannot be litigated in the same lawsuit with a common-law claim. 10. <italic>Statutory — Procedures.</italic> Eminent domain proceedings are special statutory proceedings and are to be conducted strictly according to the procedures set out in the eminent domain statute. 11. <italic>Condemnation — Exemplary Damages — Prohibited.</italic> Exemplary damages are not to be allowed in a special statutory proceeding for condemnation. 12. <bold>DAMAGES</bold> — <italic>Exemplary — Statute — Civil — Inapplicable — Inverse</italic><italic>Condemnation.</italic> The exemplary damages statute, C.R.S. 1963, 41-2-2, which authorizes the award of exemplary damages in "all civil actions," is not applicable to an inverse condemnation action. 13. <bold>EMINENT DOMAIN</bold> — <italic>Exemplary Damages — Award — Error.</italic> It was error for the trial court to allow exemplary damages in an action in which damages were awarded for a taking.<page_number>Page 362</page_number>

1. <bold>CRIMINAL LAW</bold> — <italic>In-Court Identification — Proper — Sodomy — Jail —</italic><italic>Suggestiveness — Lack of Effect.</italic> Where trial court found that victim of sodomy remembered defendant from the jailhouse incident and not from the photographic spread, reasoned that victim was in close confinement with defendant for a number of hours during which time he had ample opportunity to imprint defendant's face in his memory, concluded that any<page_number>Page 380</page_number> suggestiveness surrounding the photo identification would not affect the in-court identification and therefore allowed the in-court identification in evidence, <italic>held</italic>, trial court's findings are supported by the record and the in-court identification by the victim was entirely proper. 2. <bold>SODOMY</bold> — <italic>Instruction — Refusal — Proper.</italic> Refusal of trial court to give the following instruction — "You are instructed that the charge of sodomy is easily made but very difficult to disprove, and therefore you should examine the evidence in this case with critical care before arriving at a verdict." — was not an abuse of discretion. 3. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Cautionary — Discretion.</italic> Whether or not to give a cautionary instruction is within the trial court's discretion. 4. <italic>Sodomy — Not to Search For A Doubt — Proper.</italic> In sodomy prosecution, trial court did not err in instructing the jury that they were "not to search for a doubt." 5. <bold>CRIMINAL LAW</bold> — <italic>Sentencing — Sex Offenders Act — Guilt — Sodomy —</italic><italic>Habitual Offender — Concurrent Terms — Error.</italic> The indeterminate commitment of defendant — found guilty of sodomy and of being an habitual offender — under the Sex Offenders Act was in lieu of sentence under the Habitual Criminal Act and trial court therefore erred in sentencing him to concurrent terms under the respective statutes.

1. <bold>DRIVING UNDER THE INFLUENCE</bold> — <italic>Instruction — Misdemeanors — Giving —</italic><italic>Felony — Death — Improper.</italic> In view of fact that instruction as to statutory presumption of intoxication arising from blood alcohol content of "0.10 percent or more by weight of alcohol" may be given only in prosecution of specified misdemeanors, the giving of such an instruction in<page_number>Page 425</page_number> felony prosecutions for causing death while driving an automobile under the influence of alcohol was not proper. 2. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Intoxication — Presumption — Blood Alcohol</italic><italic>Content — Failure to Object — Plain Error — Negative.</italic> Even though giving of instruction as to statutory presumption of intoxication arising from blood alcohol content of "0.10 percent or more by weight of alcohol" was improper, nevertheless, in view of the overwhelming evidence of intoxication and defendant's failure to object, the giving of this instruction was not plain error. 3. <italic>Objections — Prior to Submission.</italic> A defendant must make all objections he has to instructions prior to their submission to the jury. 4. <bold>CRIMINAL PROCEDURE</bold> — <italic>Instructions — Objections — Specified —</italic><italic>Consideration — New Trial — Review — Rules.</italic> Under Crim. P. 30, only the grounds of objection to instructions so specified will be considered on motion for new trial or on review. 5. <italic>Plain Error — Absent — Instructions — Failure to Object — Review —</italic><italic>Negative.</italic> Absent plain error, a defendant's failure to object to instructions prior to their submission will preclude reviewing court's consideration of the alleged error therein.