The defendant, Brian Richard Madonna, appeals his convictions on two counts of criminal attempt to obtain a narcotic drug by fraud and deceit, sections 18-2-101 and 12-22-319, C.R.S.1973 (1978 Repl.Vol. 8 and 1978 Repl.Vol. 5), and one count of conspiracy to obtain a narcotic drug by fraud and deceit, sections 18-2-201 and 12-22-319,
The charges in this case arose from two separate transactions involving forged prescriptions for dilaudid, a narcotic drug. On September 21, 1977, a man who identified himself as a Denver physician telephoned the Westlake Pharmacy in Loveland, Colorado, and requested the pharmacist to fill a prescription for dilaudid. The pharmacist checked the Denver telephone directory for the doctor's name and learned that he was listed as an obstetrician and gynecologist. The pharmacist then attempted to verify the prescription by calling the doctor's office but was unable to speak with the doctor. Sometime later another call was received from a person claiming to be the doctor and the pharmacist agreed he would fill the prescription. After receiving this call, the pharmacist observed a man, who had been standing near the counter, leave the store. The pharmacist grew suspicious and followed the man out of the store in an effort to obtain a license plate number but was not successful. Another man was standing behind a telephone booth, outside the store, but he left when he saw the pharmacist.
The next day, September 22, a man identified as Robert Hanneman entered the Alco Pharmacy in Loveland and presented a prescription for dilaudid. The pharmacist checked the prescription by telephoning the clinic listed on the prescription. After ascertaining that the doctor who purportedly issued the prescription was an obstetrician, the pharmacist telephoned the police. An officer arrived and arrested Hanneman, who told the officer that three men had paid him $10 to have the prescription filled.
Several days after Hanneman's arrest, while he was being held in the Larimer County Jail, a Loveland police detective showed him photographs of the defendant and Rodney Robitz, taken by the Morgan County Sheriff's Department on September 17, 1977. Hanneman was asked if "these were the same parties involved with him in the incidents at Westlake and Alco [pharmacies]." Hanneman identified both men. Although he was certain of his photographic identification of Robitz, he was somewhat tentative in his identification of the defendant, because, as he explained, the second man had worn sunglasses the entire time Hanneman was with him. The defendant was thereafter arrested and charged.
Prior to trial the defendant moved to suppress Hanneman's photographic identification,
At the suppression hearing Hanneman testified that on September 21, 1977, three men had approached him at 19th and Larimer Streets in Denver and offered to pay him $10 for each prescription for dilaudid he was able to have filled. He agreed and they drove to Loveland where one of the men impersonated a doctor and telephoned the Westlake Pharmacy while another man went inside posing as a customer. Hanneman testified that the following day the same men picked him up in Denver and again drove to Loveland to attempt to pass a prescription at the Alco Drugstore. The man whom he knew as Brian, later identified as the defendant, wrote out a prescription in the front seat of the vehicle. Hanneman took it into the drugstore to have it filled and was subsequently arrested.
Hanneman testified that he had been with the defendant and Robitz for several hours on both September 21 and 22. Regarding the photographic identification he had made while confined in the Larimer County Jail, he stated that it had no influence on his present in-court identification of the defendant. The court denied the motion to suppress and admitted the in-court identification, ruling that it had not been tainted by the prior out-of-court identification.
On the first day of trial the prosecution informed the court that Hanneman had died of cancer. The prosecution sought to offer into evidence a transcript of Hanneman's testimony at the suppression hearing. To prove the unavailability of the witness the prosecution offered into evidence a death certificate for "Robert R. Hennemann" and presented testimony from the officer who had arrested Hanneman to the effect that the date of birth and other personal data provided to him by Hanneman at the time of the arrest matched the information on the death certificate. The court ruled that Hanneman's death had been established and his suppression testimony would be admitted under the prior testimony exception to the hearsay rule.
During the prosecution's case, Hanneman's suppression testimony, including that part relating to the photographic identification of the defendant and Robitz, was read to the jury.
The prosecution's case also included evidence of another attempted drug purchase in Brush, Colorado on September 17, 1977. In this incident a taxi driver was paid $10 to present a prescription for dilaudid at a drugstore and then deliver the dilaudid to a person whom the driver later identified as the defendant. The taxi driver's arrival at the pharmacy was preceded by a telephone call from someone purporting to be the prescribing physician. The pharmacist became suspicious of the call and contacted a police officer who arrived on the scene. With the cooperation of the taxi driver the officer was able to arrest the defendant and Robitz shortly after the driver attempted to deliver the dilaudid to the defendant at a specified location.
After the prosecution rested, defense counsel sought to impeach Hanneman's suppression testimony by offering into evidence, through the testimony of the arresting officer, Hanneman's custodial statements which allegedly were inconsistent with his former testimony. These statements related to the circumstances surrounding Hanneman's initial meeting of the defendant and his role during the incident at the Alco Pharmacy.
The jury found the defendant guilty of both counts of criminal attempt to obtain a narcotic drug by fraud and deceit and guilty of conspiracy to obtain a narcotic drug by fraud and deceit. The court sentenced the defendant to not less than four and not more than five years on each count, the sentences to run consecutively to each other. This appeal followed.
The defendant claims that the court erred in denying his motion to suppress the out-of-court and in-court identification by Hanneman because the out-of court identification was so suggestive as to violate due process of law, U.S. Const. amend. XIV; Colo.Const. art. II, sec. 25, and the in-court identification was the product of that illegal identification. We conclude that Hanneman's in-court identification of the defendant was properly admitted during the trial. In addition, we hold that under the circumstances of this case, the admission of Hanneman's pre-trial photographic identification of the defendant was harmless error, and therefore does not require a new trial.
A defendant is denied due process of law when an in-court identification is based on an out-of-court identification which is so unnecessarily suggestive as to render the in-court identification unreliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); People v. Mack, 638 P.2d 257 (Colo.1981). A pre-trial identification procedure that is so unnecessarily suggestive as to violate due process is inadmissible. E.g., Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Stovall v. Denno, supra. When such a constitutional violation is established, an in-court identification by the witness is permissible only if the prosecution proves by clear and convincing evidence that the in-court identification is not the product of the unconstitutional procedure but, rather, is based upon an independent source, such as the witness' observations of the accused during the commission of the offense. E.g., Foster v. California, supra; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); People v. Horne, 619 P.2d 53 (Colo. 1980).
In this case the court concluded that Hanneman's in-court identification of the defendant at the suppression hearing was not the product of the photographic identification of the defendant held at the Larimer County Jail.
In its suppression ruling the court noted the various suggestive elements involved in the out-of-court photographic identification. The evidence showed that only two photographs were shown to Hanneman, one of each of the two suspects in the case. There is no indication in the record of any emergency which made this type of photographic confrontation imperative and prohibited the police from utilizing a less suggestive procedure in determining the witness' ability to make an identification. Both photographs were police mug shots with each subject holding a large placard bearing an identification number, the date of September 17, 1977, and the words "Sheriff's Department Morgan County, Colorado." The officer conducting the identification asked Hanneman, who was then in jail for the same offense for which the suspects were being investigated, whether the men in the pictures were the ones involved with him in the incidents at the pharmacy, thus focusing the witness' attention on identifying the subjects in a specific criminal context.
The method of conducting this identification was improper, since it tended to interject unnecessary risks of misidentification due to the suggestive circumstances, and it was error to allow admission of testimony regarding this identification. Stovall v. Denno, supra. Nonetheless, Hanneman's personal contact with and observation of the defendant for approximately sixteen hours over a period of two days and Hanneman's participation in the commission of the crimes in concert with the defendant and his confederates sufficiently support the reliability of Hanneman's in-court identification of the defendant. Thus, we conclude that under the facts of this case, the error in admission of the photographic identification into evidence was harmless beyond a reasonable doubt and does not require reversal of the conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Germany v. People, 198 Colo. 337, 599 P.2d 904 (1979).
The defendant contends that the admission of Hanneman's suppression testimony violated his constitutional right to confrontation, U.S. Const. amend. VI; Colo.Const. art. II, sec. 16, because the prosecution did not establish Hanneman's unavailability at trial and the defendant was not accorded an adequate opportunity for full and effective
To satisfy the requirements of constitutional confrontation, a party offering a witness' former testimony must establish the present unavailability of the witness. Also, there must have been a sufficient opportunity for the accused to cross-examine the witness at the former hearing so as to "afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement." Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293, 301 (1972). "[T]he right of cross-examination then afforded provides substantial compliance with the purposes behind the confrontation requirement, as long as the declarant's inability to give live testimony is in no way the fault of the State." California v. Green, 399 U.S. 149, 166, 90 S.Ct. 1930, 1939, 26 L.Ed.2d 489, 501 (1970).
Here the prosecution presented evidence that Hanneman had died prior to trial. Although the spelling of Hanneman's name on the death certificate (Hennemann) was slightly different from the spelling he offered at the suppression hearing (Hanneman), the officer who arrested him on September 22, 1977 testified that he gave a date and place of birth identical to those entries on the death certificate. This evidence adequately supported the trial court's finding of unavailability.
We also conclude that the defendant had an adequate opportunity for cross-examination at the suppression hearing so as to satisfy the other constitutional predicate for admissibility. Not only did the opportunity for cross-examination exist, but, in addition, defense counsel took full advantage of that opportunity. During the suppression hearing, defense counsel probed into Hanneman's ability to make an in-court identification of the defendant and further cross-examined him on his vision and drinking habits. Under these circumstances we are satisfied that the jury was provided with an adequate basis for evaluating the truth of Hanneman's suppression testimony. We hold that the admission of this former testimony into evidence did not violate the defendant's constitutional right of confrontation. Mancusi v. Stubbs, supra.
The defendant argues that the court erred in rejecting evidence of Hanneman's statements made to the arresting officer on September 22, 1977, which he contends are inconsistent with those portions of his suppression testimony in which Hanneman described the circumstances of his initial encounter with the defendant and his own role in the attempt to pass the forged prescriptions. These statements are not entirely consistent with Hanneman's suppression testimony, see supra note 4, and they relate to material issues in this case. See, e.g., Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); C. McCormick, Evidence § 37 (1972). At the time of the trial the general rule was that such statements were not admissible unless the witness had been asked about the time and place and to whom the statement was made. See, e.g., Duran v. People, 162 Colo. 419, 427 P.2d 318 (1967); Balltrip v. People, 157 Colo. 108, 401 P.2d 259
We next consider whether the court erred in admitting evidence of the defendant's participation in an attempt to obtain a narcotic drug by fraud and deceit on September 17, 1977 in Brush, Colorado. We find no error in the admission of this evidence.
The Brush incident, in addition to being closely proximate in time, involved features markedly similar to the offense charged. In the Brush transaction there was a bogus telephone call from a "physician" to a pharmacist, a forged prescription for dilaudid and the solicitation of a stranger to pick up the prescription. This evidence establishes a modus operandi that is highly probative of the issue of identity. See, e.g., People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979). The trial court adhered to the procedural standards of Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959), in admitting this evidence and we find no reversible error. Compare, C.R.E. 404(b); People v. Beasley, 43 Colo.App. 488, 608 P.2d 835 (1979).
The defendant next challenges the sentences ordered for his conviction of two counts of attempt to obtain a narcotic drug and one count of conspiracy.
Pursuant to section 16-11-101, C.R.S. 1973 (1978 Repl.Vol. 8), the defendant was entitled to be sentenced to an indeterminate term with no minimum unless at the time of the conviction he had a prior conviction for a felony which occurred within five years prior to the date the present offense was committed.
At the sentencing hearing in December of 1978, evidence was introduced that on October 2, 1978 defendant Madonna had entered a guilty plea in Nebraska to a felony which had occurred on August 22, 1977. The defendant had not been sentenced on the Nebraska charge at the time he was sentenced on this case.
The defendant argues that since he had not been sentenced, his Nebraska guilty plea did not amount to a "conviction" within the language of section 16-11-101, supra, n. 11, for consideration in this case. Thus, he argues, he was entitled to an indeterminate sentence for each class 5 felony.
We find no merit in this argument. The statute does not require that the sentencing for the prior conviction antedate the sentencing for the later conviction. The statute instructs that if the defendant was previously convicted of an offense which occurred within five years prior to the date of the offense in the instant case, he is ineligible for indeterminate sentencing. Since it is undisputed that the defendant entered his guilty plea to the Nebraska charge prior to the date that he was sentenced in Colorado, the defendant was ineligible for an indeterminate sentence. We hold that the guilty plea in the Nebraska case constituted a conviction within the meaning of the statute.
The defendant also argues that the imposition of three consecutive near-maximum terms was an abuse of discretion. See, e.g., People v. Edwards, 198 Colo. 52, 598 P.2d 126 (1979). Factors that he urges us to consider include the fact that the attempts and the conspiracy took place within a twenty-four hour period; that there were no violent or aggravating factors; that Madonna's record included a 1963 conviction for check forgery, a 1973 conviction for extortion, and the 1978 Nebraska conviction for feloniously entering a building; that Madonna was at the time of sentencing a married man, thirty-five years of age, and the father of four children. He argues that the trial court record does not support the conclusion that he was a hardened criminal without hope of rehabilitation and accordingly the consecutive near-maximum sentences were not warranted.
The trial court has wide discretion in sentencing and absent a finding of abuse of discretion we will not substitute our judgment for that of the trial judge. See, e.g., People v. Trujillo, 627 P.2d 737 (Colo.1981). On appellate review of a sentencing decision, we may properly consider "the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based." Section 18-1-409(1), C.R.S.1973 (1978 Repl.Vol. 8). We are concerned with the sentencing goals of deterrence, punishment, rehabilitation, and protection of the public. See section 18-1-102(1)(b), C.R.S. 1973 (1978 Repl.Vol. 8); see also People v. Edwards, supra; People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975).
The pre-sentencing report revealed that the defendant had been arrested on numerous occasions for drug-related offenses prior to his arrest on these charges. This record, considered with his three prior felony convictions, does not lend support to the defendant's plea that he was a good candidate for rehabilitation. Moreover, the pre-sentencing report indicated that Madonna suffered from an acute drug problem and that his actions were often motivated by his need for drugs. Based upon this record, we cannot say that as a matter of law the trial court abused its discretion in fixing near-maximum terms for each conviction. People v. Valencia, 630 P.2d 85 (Colo.1981); People v. Colasanti, 626 P.2d 1136 (Colo.1981).
In addition, we find no reversible error in the order imposing consecutive sentences. People v. Soper, 628 P.2d 604 (Colo. 1981). Although both attempt counts were related to a single conspiracy to obtain narcotics through fraud and deception, each
The remaining issue we consider here is the validity of a sentence of ninety days for contempt of court which the defendant was ordered to serve because he failed to appear at his sentencing hearing on October 5, 1978. The defendant was free on bond and arrived at the sentencing hearing one hour late. The sentencing hearing was reset for one hour later, but the defendant failed to appear. The court ordered a citation to be issued to the defendant to show cause why he should not be held in contempt of court for his failure to appear. The citation was never served on the defendant.
At the sentencing hearing held on December 6, 1978, the same judge imposed a ninety day jail term on the contempt charge, to run consecutively to all other sentences.
The People have confessed error and agree that the procedural deficiencies require that the judgment of contempt be vacated. The failure of the defendant to appear as ordered by the court may constitute an indirect contempt of court. People v. Palmer, 42 Colo.App. 460, 595 P.2d 1060 (1979); Losavio v. District Court, 182 Colo. 180, 512 P.2d 266 (1973); Harthun v. District Court, 178 Colo. 118, 495 P.2d 539 (1972). As an indirect contempt, the procedure prescribed by C.R.C.P. 107(c) and (d) must be followed. Moreover, if the People pursue the contempt matter in this case on remand, then a different judge than the one who issued the citation should preside at the hearing. Ealy v. District Court, 189 Colo. 308, 539 P.2d 1244 (1975); Harthun v. District Court, supra.
We have considered the other arguments for reversal raised by the defendant and find them to be without merit.
We affirm the judgments of conviction, but reverse the judgment of contempt and remand for further proceedings in accordance with the views expressed in this opinion.
DUBOFSKY, LOHR and QUINN, JJ., dissent.
QUINN, Justice, dissenting:
Although the majority determines that Hanneman's photographic identification of the defendant was unnecessarily suggestive and testimony regarding this identification should not have been admitted at the defendant's trial, it nevertheless concludes that the admission of this testimony was harmless error. With this conclusion I disagree. In my view the admission of evidence relating to the out-of-court identification cannot be considered harmless beyond a reasonable doubt and, under these circumstances, the defendant should be granted a new trial.
In determining whether the admission of constitutionally tainted evidence is harmless, the critical inquiry is whether the prosecution, as the beneficiary of the constitutional error, is able to establish "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 825, 828, 17 L.Ed.2d 705, 710 (1967); see also Germany v. People, 198 Colo. 337, 599 P.2d 904 (1979). The record in this case belies the notion that the admission of the tainted out-of-court identification
The identification of the defendant as the author of the forged prescriptions was the critical issue at trial. Hanneman's suppression testimony placed the defendant at the scene of the offenses and directly implicated him in the crimes charged. The evidence relating to Hanneman's out-of-court photographic identification was used by the prosecution to bolster Hanneman's in-court identification of the defendant at the suppression hearing. Without the out-of-court identification evidence one can only speculate as to what verdicts the jury might have returned on the three counts. Considering the significance of the identification issue to this case, I am not convinced beyond a reasonable doubt that the admission of the unconstitutionally suggestive photographic identification did not contribute to the jury's verdict.
That there might be evidence sufficient to support the conviction apart from the tainted out-of-court identification is not determinative of the harmless error issue. A new trial is the only appropriate remedy to cure the constitutional infirmity which occurred here.
I am authorized to say that Justice DUBOFSKY and Justice LOHR join me in this dissent.
"When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain."
Compare, section 16-10-201(1)(a), C.R.S.1973.
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Though in effect at the time the defendant was sentenced, section (d) was repealed effective July 1, 1979.