Volume 187 — Colorado Reports

1. <bold>NEW TRIAL</bold> — <italic>Newly Discovered Evidence — Disfavor.</italic> Motions for new trial based on newly discovered evidence are not looked upon with great favor. 2. <italic>Overturn — Abuse of Discretion.</italic> A denial of a motion for new trial will not be overturned unless there has been shown a clear abuse of the trial court's discretion. 3. <italic>Newly Discovered Evidence — Proof.</italic> To succeed on a motion for new trial on the ground of newly discovered evidence, the defendant should show that the evidence was discovered after the trial; that defendant and his counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial; that the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and that on retrial the newly discovered evidence would probably produce an acquittal. 4. <italic>Evidence — Hearing — Support — Findings — Confession — Another —</italic><italic>False — Known — Result — Change — Negative.</italic> Evidence produced at hearing on motion for new trial based on newly discovered evidence amply supports trial court's findings to the effect: that the alleged confession of another to the killing, for which defendant was convicted, was false; that its existence was in fact made known to defense counsel during trial; that defense counsel made no effort to have the confession produced; and that even if presented at trial, it would "undoubtedly" not have changed the result. 5. <bold>CRIMINAL EVIDENCE</bold> — <italic>Suppressed — Police or Prosecution — Denial of Due</italic><italic>Process.</italic> Evidence which is suppressed by the police or prosecution results in a denial of due process.<page_number>Page 21</page_number> 6. <bold>NEW TRIAL</bold> — <italic>Withholding of Confession — Borne Out — Record — Negative.</italic> Argument of defendant — that a new trial should be granted because prosecution intentionally withheld from defense counsel confession of another to the killing — is not borne out by the record.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Inadmissible — Show — Crime — Independent — Offense</italic><italic>— Trial — Exception.</italic> Evidence is not admissible which shows, or tends to show, that the accused has committed a crime wholly independent of the offense for which he is on trial; however, an exception to the rule exists where evidence of the other criminal activity tends to show scheme, plan, intent or design. 2. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Issue — Participant — Observer — Evidence —</italic><italic>Admissible — Plan — Scheme — Design.</italic> Where, in instant case, primary fact issue was whether defendant was a participant in the sale of cocaine or merely a casual observer, <italic>held</italic>, under this circumstance, evidence that marijuana had been purchased from defendant and another two months before date of instant transaction was admissible — over defense objection — as tending to show that defendant was engaged in a continuing plan, scheme, or design to sell illicit drugs. 3. <bold>CRIMINAL EVIDENCE</bold> — <italic>Prior Criminal Activity — Exception — Show — Large</italic><italic>Continuing Plan — Admissible.</italic> Evidence of prior criminal activity by the accused is admissible as an exception to the general rule when such evidence shows a larger continuing plan to engage in certain criminal activity, and such exception especially applies in cases where motive, identity of the actor, and intent are in dispute. 4. <italic>Charged Transaction — Prior Transaction — Weigh — Judge — Discretion</italic><italic>— Admissibility.</italic> In view of fact that trial judge must weigh the degree to which the charged criminal transaction and an alleged prior criminal transaction are similar, the bearing of the other transaction on the issues presented at the trial, and the degree to which the jury would be prejudiced by evidence of the other transaction, the judge will be allowed substantial discretion in deciding the admissibility of evidence of the prior criminal transaction.<page_number>Page 49</page_number> 5. <bold>CRIMINAL LAW</bold> — <italic>Taking Stand — Cross-Examined — Other Offense — Error —</italic><italic>Ruling — Not Made.</italic> Even though it would be error for the trial judge to rule that a defendant, by taking the stand, could be cross-examined as to any other offense he committed — even if not connected in any way to the charged offense — nevertheless, a full reading of the transcript of the <italic>in</italic><italic>camera</italic> hearing in instant case reveals that trial judge made no such ruling. 6. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Selling — Conspiracy — Evidence.</italic> Evidence fully supports the jury's verdict of guilty of the crimes of selling narcotic drugs and conspiracy to sell narcotic drugs.

1. <bold>SOCIAL SECURITY AND PUBLIC WELFARE</bold> — <italic>Department of Social Services —</italic><page_number>Page 79</page_number><italic>Set Aside — Legislation — Old Age Pensions — Aid — Blind — Needy Disabled</italic><italic>— Lack of Authority.</italic> Department of Social Services, as an agency of the state government, had no authority to set aside or circumvent the legislative mandate contained in section 119-1-8(9)(a), which provides that effective January 1, 1974, the programs for old age pensions, aid to the blind, and aid to the needy disabled, as established in this chapter, shall continue; accordingly, the Department's attempt to terminate the state funded program of Aid to Needy Disabled (AND) was a nullity. 2. <italic>Department of Social Services — Establish — Program — Aid to</italic><italic>Temporarily Disabled — Lack of Authority.</italic> Department of Social Services did not have authority to establish a program of Aid to Temporarily Disabled (ATD) relying upon certain language in appropriations bill relating to "Temporary Disability (6 to 12 months)." 3. <italic>Aid to Temporarily Disabled — Not on Call — Legislative Intent —</italic><italic>Provide — Needy Disabled.</italic> From record in case, including tape and transcript of portion of testimony before Joint Budget Committee of the 1974 Colorado General Assembly, it is apparent that members of committee realized that Aid to Temporarily Disabled (ATD) could not be created at designated legislative session unless Governor put subject on his call, and this was not on the call; legislative intent was therefore to provide for needy disabled not receiving benefits under federal Supplemental Security Income Program (SSI). 4. <italic>Repeal — Aid to Needy Disabled — Replace With Aid to Temporarily</italic><italic>Disabled — Independent Enabling Act.</italic> Even if the legislature were attempting to repeal the independent Aid to Needy Disabled (AND) program and replace it with an Aid to Temporarily Disabled (ATD) program, it could not constitutionally do so without an independent enabling act, setting up statutory provisions for Aid to Temporarily Disabled (ATD). 5. <italic>Disabled of Colorado — Legislative Intent to Provide — Appropriation</italic><italic>— Adequate.</italic> To give effect to the legislature's obvious intent to provide for the disabled of Colorado who are not receiving benefits under federal Supplemental Security Income Program (SSI) requiring disability to extend at least 12 months, $500,000 appropriation from state's General Fund must be construed as an "adequate appropriation" for the Aid to Needy Disabled (AND) program for which statutory framework presently exists.

1. <bold>ARREST</bold> — <italic>Cigarette — Smell — Burning Marijuana — Probable Cause —</italic><italic>Search — Incident — Justified.</italic> Where police officer observed defendant walking toward him smoking a hand-rolled cigarette, recognized the smell of burning marijuana when he was side by side with defendant, seized the cigarette, arrested and searched defendant thereupon discovered fourteen balloons containing heroin and cocaine on defendant's person, <italic>held</italic>, under the circumstances, hand-rolled cigarette and smell of burning marijuana were sufficient to constitute probable cause for arrest for possession; thus, subsequent search was justified as being incident to a valid arrest. 2. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Heroin and Cocaine — Large Amounts — Negative —</italic><italic>Useable Quantities — Conviction.</italic> Although defendant — on whose person fourteen balloons containing heroin and cocaine were discovered — did not have in his possession large weight amounts of heroin and cocaine they could not be described as "a mere trace"; actually, he did possess useable<page_number>Page 95</page_number> quantities of narcotics, and these amounts, as such, were sufficient to sustain his conviction for possession of heroin and cocaine.

1. <bold>CRIMINAL LAW</bold> — <italic>Concurrent Sentences — Convictions — Multiple Counts —</italic><italic>Support — Identical Evidence — Statute.</italic> The statute, 1971 Perm. Supp., C.R.S. 1963, 40-1-508(3), requires concurrent sentences to be imposed for convictions under multiple counts only where the counts of which the accused has been convicted are supported by <italic>identical evidence</italic>. 2. <italic>Sentence — Concurrent — Statute — Two Shootings — Two Different</italic><italic>Persons — Evidence — Assault to Murder — Identical — Negative —</italic><italic>Consecutive — Proper.</italic> Where defendant who was convicted of two counts of assault with intent to murder, contended that section 40-1-508 of the Colorado Criminal Code required the court to impose concurrent sentences rather than consecutive sentences, as was done in instant case, <italic>held</italic>, defendant's contention is without merit; even though two shootings occurred during same criminal episode as part of a continuous course of conduct closely related in time and circumstances, nevertheless, two separate<page_number>Page 172</page_number> criminal acts were actually committed against two different persons thus supporting the conviction of defendant on two separate counts of assault to murder; the evidence supporting the separate assaults cannot be characterized as identical evidence even though there were some common elements of proof.

1. <bold>CRIMINAL LAW</bold> — <italic>Mitigation of Penalties — Amendatory Legislation.</italic> A defendant is entitled to the benefits of amendatory legislation which mitigates penalties for crimes when relief is sought before finality has attached to the judgment of conviction. 2. <italic>Sentence — Forgery — Benefits — Amendatory Legislation — Relief —</italic><italic>Direct Appeal — Proper.</italic> Where defendant was given five to nine-year sentence for second-degree forgery, a class four felony, and this transpired less than one month prior to effective date of statutory amendment which provided for imposition of indeterminate sentence for class four and class five felonies, <italic>held</italic>, under these circumstances, defendant was entitled to benefits of the amendatory legislation, notwithstanding that relief was sought by direct appeal rather than by a postconviction proceeding.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Possession — Proof — Dominion and Control —</italic><italic>Contraband.</italic> Possession may be proved by showing that defendant exercised dominion and control over the contraband substance. 2. <bold>JUDGES</bold> — <italic>Trial — Trier of Fact — Obligation — Resolve Conflicts —</italic><italic>Evidence.</italic> The trial judge, as the trier of the fact, has the responsibility of resolving conflicts in the evidence. 3. <bold>COURTS</bold> — <italic>Reviewing — Sufficiency of Evidence — Contraband — Dominion</italic><italic>and Control — Substitution of Judgment — Trial Judge — Negative — Inquiry —</italic><italic>Prima Facie.</italic> In determining whether there is sufficient evidence to establish dominion and control over contraband substance, reviewing court will not substitute its judgment as to weight of the evidence or the credibility of the witnesses for that of the trial judge; rather, the inquiry of the reviewing court must be whether district attorney established a prima facie case of possession. 4. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Heroin — Possession — Evidence — Sufficient —</italic><italic>Guilt.</italic> In prosecution for possession of heroin, a narcotic drug, evidence was sufficient to establish defendant's guilt beyond a reasonable doubt. 5. <bold>JUDGES</bold> — <italic>Factual Dispute — Trial Judge — Review — Supreme Court —</italic><italic>Negative.</italic> The determination of a factual dispute is within the province of the trial judge and is ordinarily not subject to review by the Supreme Court. 6. <bold>CRIMINAL EVIDENCE</bold> — <italic>Prosecution — Chain of Custody — Offered — Same —</italic><italic>Obtained.</italic> Generally, the prosecution must establish a chain of custody that will insure that the evidence offered is in the same condition that it was in at the time it was obtained.<page_number>Page 227</page_number> 7. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Heroin — Admission — Proper — Chain of Evidence —</italic><italic>Sufficient.</italic> In prosecution for possession of heroin, trial court did not err in admitting in evidence the heroin that came from the balloon, and claim that chain of evidence was incomplete because custodian was not called to testify to receipt and delivery of the balloon is without merit, particularly where record reflects the following facts: that detective, within short time after arrest, initialed and dated balloon containing alleged heroin and placed balloon in custodial envelope secured with metal clips; chemist, who determined that balloon contained heroin testified that envelope had not been opened prior to analysis, and, after completion of analysis, heroin was resealed in envelope that was initialed by chemist; actually, the chain of evidence was sufficient.

1. <bold>DISCOVERY</bold> — <italic>Names of Witnesses — District Attorney — Call —</italic><italic>Preliminary Hearing — Statements — Defendant — Proper.</italic> In prosecution for aggravated robbery and conspiracy to commit aggravated robbery, defendants were entitled to discovery of the names of the witnesses which district attorney expected to call at preliminary hearing, together with copies of any relevant written or recorded statements.<page_number>Page 259</page_number> 2. <italic>Criminal — Limited — Rules.</italic> Crim. P. 16, as amended, contemplates limited discovery prior to the preliminary hearing, but is not designed to convert the preliminary hearing into a mini trial. 3. <italic>Criminal — Scope — Limit — Witnesses — Preliminary Hearing —</italic><italic>Relevant Statements — Rules.</italic> Crim. P. 16, as amended, limits the scope of discovery to those witnesses who will be called at the preliminary hearing and the relevant statements which those witnesses may have provided to the district attorney. 4. <italic>Criminal — Wide Open — Intent — Negative — Rules.</italic> It was not the intention of the Supreme Court in amending Crim. P. 16 to provide wide-open discovery prior to the preliminary hearing. 5. <italic>Criminal — Advance Notice — Witnesses — Alleviate — Gaming Aspects —</italic><italic>Truth.</italic> The right to advance notice of the witnesses who will be called by the district attorney and the production of their prior statements tends to alleviate the gaming aspects of a criminal trial and makes the search for truth meaningful. 6. <bold>CRIMINAL PROCEDURE</bold> — <italic>Discovery — Amendments — Change — Purpose —</italic><italic>Preliminary Hearing — Negative — Rules.</italic> The amendments to Crim. P. 16 were not, and are not intended to convert, expand, or change the purpose of the preliminary hearing. 7. <italic>Preliminary Hearing — Sole Purpose — Probable Cause — Accused —</italic><italic>Committed Crime.</italic> The sole purpose of the preliminary hearing is to determine whether probable cause exists to show that an accused committed a particular crime.