Opinion
No. 26175
Decided September 29, 1975.
Defendant was convicted of felony-theft and appealed.
Affirmed
1. INDICTMENT AND INFORMATION — Defense Counsel — Advised — Felony Theft — Adequate. Where record indicates that during a motion hearing more than five weeks before trial, defense counsel was advised by the prosecution that defendants would be tried under the felony theft statute, held, under the circumstances, defendant was thereby adequately apprised of the elements of the offense of which he was charged.
2. Every Element — Unnecessary. There is no requirement, either constitutional or statutory, that every element of an offense be alleged in the information.
3. Sufficient — Advise — Defendant — Charges. A charging document is sufficient if it advises a defendant of the charges he is facing so that he can adequately defend himself.
4. THEFT — Felony — Charge — Compliance — Statute — Information — Specific Intent — Not Alleged. Information charging defendant with felony theft complied with requirements of statute — which provides that information will be sufficient if it alleges that defendant committed crime of theft by unlawful taking of a thing of value of a person — notwithstanding that such information did not allege specific intent to permanently deprive owner of use of property.
5. PROSECUTING ATTORNEYS — Whom — What — Prosecution — Wide Discretion. In determining whom to prosecute for criminal activity and on what charge, a prosecutor has wide discretion.
6. Selectivity — Enforcement of Laws — Violation — Constitution — Negative. The conscious exercise of selectivity in the enforcement of laws is not in itself a constitutional violation.
7. CONSTITUTIONAL LAW — Equal Protection — Not Denied — Absent — Prosecutor — Policy of Selectivity. Equal protection is not denied absent a showing that a prosecutor has exercised a policy of selectivity based upon an unjustifiable standard such as race, religion or any other arbitrary classification.
8. CRIMINAL LAW — Prosecution — Discriminatory — Defendant — Burden of Proof. Defendant has burden of proving discriminatory prosecution; and bald allegations of such practices hardly suffice.
9. CONSTITUTIONAL LAW — Equal Protection — Denial — Negative — Prosecution — Others — Immunity — Plea Bargain. Defendant, who was convicted of felony theft, was not deprived of equal protection under the law because the prosecution offered other parties to the crime immunity and the opportunity to negotiate a plea bargain, and not affording him any of these opportunities.
10. WITNESSES — Late Endorsement — Discretion of Court. Whether to allow a late endorsement of a witness is within the discretion of the trial court; and absent an abuse of such discretion the ruling will not be disturbed on review.
11. Endorsement — Morning — Trial — Opportunity to Interview — Continuance — Lack of Prejudice. Where trial court gave defendant an opportunity to interview and become familiar with contents of material witness' testimony by granting defendant's motion for continuance, held, under such circumstances, trial court's endorsement of such witness on morning trial was originally scheduled to begin did not prejudice defendant.
12. TRIAL — Closing Argument — Scope — Discretion of Court. Scope of closing argument is a matter addressed to the discretion of the trial court.
13. PROSECUTING ATTORNEYS — Fair Comment — Remarks — Fair Trial. Trial court was within its discretion in ruling that remarks made by prosecutor during closing argument before jury were fair comment on the evidence and did not deny defendant right to a fair trial.
Appeal from the District Court of Garfield County, Honorable Gavin D. Litwiller, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, Gregory L. Williams, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Lee Belstock, Deputy, for defendant-appellant.
Defendant MacFarland appeals from a conviction of felony-theft in violation of 1971 Perm. Supp., C.R.S. 1963, 40-4-401. We affirm.
Now section 18-4-401, C.R.S. 1973.
MacFarland and a confederate, John Treme, were jointly charged with felony-theft, burglary and two counts of conspiracy to commit each act. Immediately prior to trial, Treme successfully negotiated a plea bargain and was endorsed as a prosecution witness. The jury acquitted MacFarland of the burglary and conspiracy to commit burglary charges. (The conspiracy to commit theft charge had been previously dismissed by the court.)
The evidence presented at trial reflects that MacFarland and Treme were involved in the theft of a television set, stereo tape deck and approximately one dozen cases of liquor from a West Glenwood, Colorado bar. The goods were transported in MacFarland's truck to a trailer occupied by Michael and William Shields. The Shields brothers assisted MacFarland and Treme in unloading and storing the stolen goods inside the trailer and in later disposing of them. The Shields and Treme subsequently testified on behalf of the prosecution.
I.
Defendant's first assignment of error is that the trial court improperly denied his motion to dismiss. He points out that neither the theft count in the information nor the bill of particulars alleges the specific intent to permanently deprive the owner of the use of property; therefore, he contends that the elements of the crime of theft were not adequately specified.
[1] The record indicates that during a motion hearing more than five weeks before the trial, defense counsel was advised by the prosecution that defendants would be tried under section 40-4-401(1)(b), which provides:
"(1) A person commits theft when he knowingly obtains or exercises control over any thing of value of another without authorization, . . . and:
. . . .
"(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive such other person permanently of its use. . . ." (Emphasis added.)
Defendant was thereby adequately apprised of the elements of the offense.
[2,3] Furthermore, this court has consistently held that there is no requirement, either constitutional or statutory, that every element of an offense be alleged in the information. A charging document is sufficient if it advises a defendant of the charges he is facing so that he can adequately defend himself. People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973) and cases cited therein.
[4] We would further point out that the information in this case complied with the requirements of 40-4-401(6), which provides:
"In every indictment or information charging a violation of this section, it shall be sufficient to allege that, on or about a day certain, the defendant committed the crime of theft by unlawfully taking a thing or things of value of a person or persons named in the indictment or information. . . ."
An identically worded subsection of a prior theft statute (1967 Perm. Supp., C.R.S. 1963, 40-5-2(3)) withstood constitutional attack in Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971).
II.
[5-9] The defendant argues that he was denied equal protection of the law because the prosecution offered the Shields brothers immunity and allowed Treme to negotiate a plea bargain, while he was not afforded any of these opportunities. For this reason, he maintains that the trial court improperly denied his motion to suppress the testimony of these witnesses. The argument lacks merit.
In determining whom to prosecute for criminal activity and on what charge, a prosecutor has wide discretion. See Myers v. District Court, 184 Colo. 81, 518 P.2d 836 (1974); People ex rel. Dunbar v. Gym of America, Inc., 177 Colo. 97, 493 P.2d 660 (1972); People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969). The conscious exercise of selectivity in the enforcement of laws is not in itself a constitutional violation. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); State v. Hicks, 213 Ore. 619, 325 P.2d 794 (1958). Equal protection is not denied absent a showing that a prosecutor has exercised a policy of selectivity based upon an unjustifiable standard such as race, religion or any other arbitrary classification. Oyler v. Boles, supra; State v. Hicks, supra. Furthermore, defendant has the burden of proving discriminatory prosecution. United States v. Malinowski, 472 F.2d 850 (3d Cir. 1973), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). Bald allegations of such practices hardly suffice.
III.
[10] We also reject defendant's contention that the trial court erred in granting the prosecution's motion for the endorsement of Treme as a witness on the morning that the trial was originally scheduled. Whether to allow a late endorsement of a witness is within the discretion of the trial court. Absent an abuse of such discretion, the ruling will not be disturbed on review. People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972); Ziatz v. People, 171 Colo. 58, 465 P.2d 406 (1970).
[11] The record reflects that along with granting the prosecution's motion, the trial court also granted defendant's motion for a continuance. Defendant was given an opportunity to interview and become familiar with the contents of Treme's testimony in advance of the trial. Thus, the defendant was not prejudiced and no error exists. Raullerson v. People, 159 Colo. 395, 412 P.2d 236 (1966).
IV.
[12,13] Finally, defendant moved for a mistrial because of certain remarks made by the prosecutor during his closing argument before the jury which he claimed resulted in a denial of his right to a fair trial. The trial court ruled that the argument in question was a fair comment on the evidence and denied the motion. The scope of closing argument is a matter addressed to the discretion of the trial court and we see no abuse thereof. People v. Motley, 179 Colo. 77, 498 P.2d 339 (1972).
The judgment is affirmed.
MR. JUSTICE HODGES, MR. JUSTICE LEE and MR. JUSTICE ERICKSON concur.