Opinion
No. 25312
Decided March 12, 1973. Rehearing denied April 2, 1973.
Defendant was convicted of burglary and conspiracy and appealed.
Affirmed
1. BURGLARY — Clothing Store — Defendant — Front Seat — Vehicle — Males — Covered With Clothing — Guilt — Jury. In prosecution for clothing store burglary, where record reveals that tall Negro male was seen leaving front door of clothing store at 8:30 p.m., with his arms laden with clothing and police officer responding to call saw automobile in vicinity with four Negro males in vehicle and vehicle was seen at 10:00 p.m. and two males in back seat were covered with the stolen clothing, held, under the circumstances, guilt of defendant — who was sitting in right front seat of vehicle when it was seen at 10:00 p.m. — was for the jury.
2. CRIMINAL EVIDENCE — Exculpatory Statement — Twelve Hours Later — Res Gestae — Negative. Exculpatory statement made by defendant to police nearly twelve hours after he was placed under arrest was not so contemporaneous that it could be considered part of the res gestae.
3. COURTS United States Supreme Court — Griffin v. California — District Attorney — Comment — Prohibition — Failure to Take Stand. Under the United States Supreme Court decision of Griffin v. California, a district attorney is prohibited from commenting on the defendant's failure to take the stand.
4. PROSECUTING ATTORNEY — Objection — Exculpatory — Comment — Take Witness Stand — Impinge — Right to Silence — Negative. Where district attorney objected to admission of exculpatory statements made by defendant and another on ground that they were hearsay and stated that defendant could "take the witness stand if he so desires like any other witness in the case," and court instructed jury that arguments, objections and statements of counsel were not evidence and could not be considered, held, under the circumstances, the trifling comment that occurred in the heat of trial did not impinge upon defendant's right to silence and did not constitute reversible constitutional error.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Jerry W. Raisch, Assistant, George W. Boyle, II, Assistant, for plaintiff-appellee.
H.D. Reed, for defendant-appellant.
[1] The defendant, R. C. Gilkey, was tried jointly with another defendant on charges that were made following the burglary of a retail clothing store. The jury convicted the defendant of burglary, 1967 Perm. Supp., C.R.S. 1963, 40-3-5; theft, 1967 Perm. Supp., C.R.S. 1963, 40-5-2; and conspiracy, C.R.S. 1963, 40-7-35. Gilkey's conviction is based upon circumstantial evidence. On appeal, he asserts that the evidence was insufficient to sustain his conviction and that the conduct of the district attorney requires reversal and a new trial. In addition, he claims that the court improperly instructed the jury and improperly denied the admission of an exculpatory statement which he made to the police following his arrest. In our judgment, the evidence justified the submission of the case to the jury. Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963); Militello v. People, 95 Colo. 519, 37 P.2d 527 (1934).
A review of the facts places the case against the defendant in proper perspective. The sound created by the breaking of the glass in the front door of Kings' Casuals alerted a tailor who had a shop nearby. The tailor saw, from a distance of approximately 125 feet, a tall Negro male leaving the front door of King's Casuals with his arms laden with clothing. The tailor alerted the police at approximately 8:30 p.m. A police officer responding to the call saw a white Chevrolet automobile in the vicinity, stopped at a stop sign, with its lights off, and noted the license number and the fact that four Negro males were in the car. He relayed the information to police headquarters and went on to the scene of the burglary. Thereafter, at approximately 10:00 p.m., the police saw a white Chevrolet automobile with the reported license number at the residence set out in the motor vehicle records. Four Negro males were in the car, and the defendant was sitting in the right front seat. The two males in the back seat were covered with the clothing which had been stolen from King's Casuals. A tire was also found in the back seat among the clothing that had been stolen. All four of the occupants of the car were arrested.
[2-4] Nearly twelve hours after the defendant, Gilkey, was placed under arrest, he gave an exculpatory statement to the police, claiming that he had been picked up by the car owner to take a tire from his car to be repaired. He contends that the statement was admissible and should have precluded the instruction that recent and unexplained possession of stolen property is evidence of participation in theft or burglary. The district attorney objected on the ground that the statement was hearsay and his objection was valid. The defendant's explanatory statement was not so contemporaneous that it could be considered part of the res gestae. Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965). See Young v. People, 175 Colo. 461, 488 P.2d 567 (1971); Archina v. People, 135 Colo. 8, 307 P.2d 108 (1957); Henderson v. State, 163 Tex.Cr.R. 153, 289 S.W.2d 274 (1956). Defense counsel also seeks a reversal as a result of the objection which the district attorney made at the time the defendant's statement to the police was offered into evidence. When defense counsel asked the police officer about the exculpatory statements which Jackson and Gilkey made, the district attorney objected on the basis that the statements were hearsay and said, "He can take the witness stand if he so desires like any other witness in this case. I object to any questions concerning anything that was said." The objection, in the eyes of defense counsel, merits reversal under the mandate of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Griffin v. California, supra, prohibits a district attorney from commenting on the defendant's failure to take the stand. Under the circumstances of this case, we find that the error complained of was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The court instructed the jury that the arguments, objections, and statements of counsel were not evidence and should not be considered. The trifling comment that occurred in the heat of trial did not impinge upon the defendant's right to silence and did not constitute reversible constitutional error. See People v. Calise, 179 Colo. 162, 498 P.2d 115 (1972); United States v. White, 444 F.2d 1274 (5th Cir. 1971); People v. Hill, 66 Cal.2d 536, 58 Cal. Rptr. 340, 426 P.2d 908 (1967). See generally, Annot., 24 A.L.R.3d 1093 (1969).
Accordingly, we affirm.
MR. JUSTICE KELLEY does not participate.