Opinion
No. 23787
Decided April 3, 1972.
Defendant was convicted of robbery of a liquor store and brought error.
Affirmed
1. ROBBERY — Liquor Store — Contention — Denial of Speedy Trial — Lack of Merit — Delay — Fault of Defendant. Where defendant was convicted of robbery of a liquor store and now contends that he was denied a speedy trial because trial was held more than fourteen months after he was charged, held, the contention is without merit; especially, where record reflects that the delay which preceded trial was occasioned, to a large extent, by the defendant.
2. CRIMINAL LAW — Continuances — Plea Bargain — Denial of Speedy Trial — Negative. Where record reflects that defendant requested and obtained numerous continuances in an attempt to effectuate a plea bargain, under such circumstances the prosecution is not chargeable with delay that has been caused by the defendant, and defendant's failure to effect a satisfactory plea bargain cannot be declared to be a denial of a speedy trial
3. CRIMINAL PROCEDURE — Robbery — Identification — Photographs — Line-ups — Taint — Negative — Fair — Due Process. In prosecution for robbery of a liquor store, defendant's contention — that courtroom identification was tainted by improper photographic displays and improper procedure in the lineups — is without merit; hence, where trial court found that photographic displays were not suggestive and that lineups were fairly conducted, under such circumstances, defendant was not deprived of due process of law and in-court identifications were properly made.
4. CRIMINAL LAW — Right to Counsel — Pick Lawyer — Choice — Right — Negative. The defendant's right to counsel does not grant him the right to pick a lawyer of his choice.
5. Trial Strategy — Subject — Hindsight Judgment — Guilty Verdict — Negative. Defense counsel's trial strategy cannot be the subject of a defendant's hindsight judgment following a verdict of guilty.
6. ROBBERY — Liquor Store — Adequate Representation. In prosecution for robbery of a liquor store, record reflects that defendant was adequately represented by counsel despite the fact that a few days prior to trial a different member of the public defender's staff assumed responsibility for the trial, and despite the contention that new counsel failed to make proper investigation prior to trial and was unprepared to defend him on the robbery charge.
7. CRIMINAL LAW — Assistance of Counsel — Claimed Denial — New Counsel — Appeal — Contention — Lack of Merit. Where trial court, before denying the motion for new trial, fully considered defendant's contention that he had been denied effective assistance of counsel, and thereafter, new counsel was appointed to assist defendant on appeal, under these circumstances, defendant was not denied effective assistance of counsel on the theory that he should have been afforded separate counsel at new trial hearing to present his claim with reference to denial of effective assistance of counsel at trial.
8. WITNESSES — Fifth Robbery Witness — Failure to Endorse — Information — Denial of Due Process — Negative. Where it appeared that trial strategy dictated that fifth robbery witness should not be called and it did not appear whether his evidence would have been favorable to the defendant, held, under the circumstances, the fact that this witness, whose name appeared on the police offense sheet, was not endorsed on the information did not constitute a denial of due process.
Error to the District Court of the City and County of Denver, Honorable George McNamara, Judge.
Blaine L. Boyens, for plaintiff in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, James F. Pamp, Assistant, for defendant in error.
Plaintiff in error, Larry G. Maynes, was the defendant in the trial court. Hereinafter, he will be referred to as the "defendant" or by name. A jury found the defendant to be guilty of robbery of a liquor store in Denver, Colorado. We affirm the conviction.
The robbery in issue occurred on January 26, 1967, at approximately 5:30 p.m., when a male customer, who was subsequently identified as the defendant, entered the liquor store at 1648 Federal Boulevard and ordered a quart of tequila. This customer had a flesh-colored Band-aid across his nose. The clerk on duty, one Albert D. Johnson, Jr., turned to get the tequila, and when he turned back with the tequila, the customer had a gun pointed at him and demanded all of the money. Johnson produced $120 which the customer stuffed in various pockets as he backed out of the store, dropping several dollar bills on the floor in the process. When he reached the street, he turned and ran north on Federal Boulevard.
Another clerk in the store, Walter Faris, was seated at a desk in the back of the store. He also observed the actions of the customer. While Johnson pushed an alarm button, Faris ran to the door and saw the customer running toward the Silver Tire Company, which was located next door to the liquor store. Two employees of the tire company observed a man running from the store and stated that their attention was attracted to him because in his haste he stumbled and almost fell and also because it was cold and the man was not wearing a coat.
Subsequently, the four witnesses were shown pictures of various individuals in an attempt to secure an identification of the robber. After the witnesses had spent two days examining photographs, an identification was made, and the defendant, Larry G. Maynes, was arrested. Thereafter, he appeared in two separate lineups and was positively identified by three of the witnesses. The other witness, although unable to make a positive identification, stated that the defendant looked like the person he saw going toward the Silver Tire Company.
An information was filed on February 6, 1967, which charged the defendant with robbery. Trial commenced, after eleven continuances, on April 10, 1968. The jury returned its verdict on April 12, 1968. The Public Defender's Office, who represented the defendant, filed a motion for a new trial, and the defendant, in turn, filed a pro se motion alleging that he was represented by incompetent counsel. Both motions were denied, and, thereafter, this appeal was prosecuted.
We have examined the seven grounds for reversal which the defendant has asserted and find them to be without merit. Only four points deserve comment.
I.
The defendant contends that he was denied a speedy trial, because trial was held more than fourteen months after he was charged. U.S. Const., amend. VI (Sixth Amendment); Colo. Const., art. II, § 16; C.R.C.P. 48(b).
[1,2] The delay which preceded trial was occasioned, to a large extent, by the defendant. The defendant requested and obtained numerous continuances in an attempt to effectuate a plea bargain. The prosecution is not chargeable with delay that has been caused by the defendant. The defendant's failure to effect a satisfactory plea bargain cannot be declared to be a denial of a speed trial. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971); see Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965); Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963).
II.
The defendant's claim that the courtroom identification was tainted by improper photographic displays and improper procedure in the lineups is without merit. The trial court found that the photographic displays were not suggestive and that the lineups were fairly conducted. Under these circumstances, the defendant was not deprived of due process of law and the in-court identifications were properly made. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Brown v. People, 177 Colo. 397, 494 P.2d 587.
III.
[4-6] A few days prior to the commencement of trial, a different member of the public defender's staff assumed responsibility for the trial. The defendant contends that his new counsel failed to make proper investigation prior to trial and was unprepared to defend him. The defendant's right to counsel does not grant the defendant the right to pick the lawyer of his choice. In the instant case, the public defender that tried the case had access to all of the records and investigatory materials which had been compiled after counsel was appointed for the defendant. Moreover, defense counsel's trial strategy cannot be the subject of a defendant's hindsight judgment following a verdict of guilty. See ABA Standards of Criminal Justice Relating to The Defense Function, § 5.2(b). Our examination of the record causes us to conclude that the defendant was adequately represented. See Melton v. People, 157 Colo. 169, 401 P.2d 605 (1965).
The defendant also contends that the trial court's failure to advise him of his right to counsel during the hearing on his motion for a new trial requires reversal. Although the defendant was still being represented by the public defender, he claims that separate counsel should have been appointed to present his claim that he had been denied effective assistance of counsel. We disagree. The trial court fully considered the contention of the defendant before denying the motion for new trial. Thereafter, new counsel was appointed to assist the defendant on appeal, and the argument that the defendant had been denied effective assistance of counsel was again raised. After thoroughly reviewing the record, we conclude that the defendant's argument is without merit.
IV.
The defendant also looks to the due process commands of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), to sustain his claim for reversal. His assertion of error is predicated on the fact that a fifth witness to the robbery, whose name appeared on the police offense sheet, was not endorsed on the information. His claim is based on the theory that the fifth witness would tend to exonerate him, because he identified a get-away car, as well as the robber. It is impossible for us to say that this evidence was favorable or would in any wise assist the defendant in his defense. It appears that trial strategy dictated that the witness should not be called, and the case was submitted to the jury in its present posture.
Accordingly, we affirm.
MR. CHIEF JUSTICE PRINGLE, MR. JUSTICE DAY, MR. JUSTICE GROVES, MR. JUSTICE LEE, DEAN C. MABRY, District Judge, and LAWRENCE THULEMEYER, District Judge,fn_ concur.
District Judges sitting under assignment by the Chief Justice under provisions of article VI, section 5(3) of the constitution of Colorado.
MR. JUSTICE HODGES and MR. JUSTICE KELLEY not participating.