*1 No. 24636 Meader v. Kathy Marie State of Colorado 1010) (497 P.2d Decided June
Douglass Primavera, F. plaintiff in error. Dunbar, Attorney General, Moore,
Duke W. John P. Deputy, Eugene Cavaliere, Assistant, C. for defendant error.
En Banc.
MR. LEE JUSTICE delivered the of the Court. Kathy Marie Meаder was convicted in the district County court of Clear Creek of vehicular homicide in Supp., violation 1965 Perm. C.R.S. She 13-5-155. brings judgment error to reverse the of conviction. We affirm. charge arose out of a one-car accident which occurred 70, approximately on Interstate one mile east of Idaho Springs, early morning in the *3 of March 1969. Defendant operating the car at the time of the accident and was accompanied by Barry Blevins, occupiеd passenger who the side of seat, the front Small, riding and Narland who was the rear seat the of automobile. Mr. Small died as a result of this accident. The defendant, record shows that passen- her gers, persons and three having other pаrty at a mountain cabin located in the Dumont, hills above Colorado. During gathering, the course of this intoxicating considerable liquor was consumed. The evidence showed that the defend- ant had from two to three liquor. drinks of hard party The lеft the premises cabin to return to Denver separate in two driving cars. The defendant was car, the first which was a Ford Falcon. record shows that proceeded the defendant unpaved down canyon the roadway toward Dumont аt speeds estimated sixty between per and miles hour. Upon reaching Dumont, 1-70 proceeded at the easterly cars toward Denver. The defendant’s car soon outdistanced the trailing second car and was lost from view.
The reсord shows that a short distance east of Idaho Springs 1-70 emerged enters twin tunnels. Defendant from high the eastbound tunnel speed. point, at a rate of At this easterly lane of 1-70 makes a broad curve from left, at which the permitted speed fifty mаximum is limit investigating per miles hour. The officer testified that he roadway, indicating that found skid marks on the as paved car curve defendant’s started into the it left the surface and skidded down shoulder of road for distance approximately paved 161 feet came and then back onto the roadway where the surface skid marks continued point again approximately feet to a where the car left roadway paved surface of the and slammed into guardrail. proceeded approximately point It 72 feet to a again guardrail apparently where it struck the and rode guardrail top feet, fifty eventually for an additional bouncing guardrail rolling over the and a distance of 67 feet dоwn the rock embankment into Clear Creek where landed top, facing upstream. on its The various skid marks and damage guardrail indicated that the automobile was out of control for a of 482 distance feet.
Mr. Small was thrown from the back sеat of the body automobile crushed the vehicle as bounced rocky down the bank into the river. accident, westerly proceeding
Witnesses to who were 1-70, they the westbound lane of testified that observed skidding highway upright position car dоwn the in an on the vehicle’s radiator for a considerable distance. The vehicle was proceeding high speed, although they described as at a rate of give could opinion an as they at the time observed it. investigating pеrmitted testify, officer was over
objection defendant, in his defendant’s traveling eighty eight-five vehicle was between *4 hour at the time of the part accident. As a of the foundation permitting laid for speed given, this of to be he testified that he highway had driven that stretch of at a speed maximum of hour. This he consid- top speed ered to be the patrol through could drive his car highway. Any this curve in the faster would result in patrol loss of control car.
Defendant testify chose not in hеr behalf and own presented no evidence whatsoever People’s to rebut the case.
I. argues erred, Defendant first that the trial court allowing the death evidence, certificate of Narland Small into first, 1963, 52-1-16, for two reasons: permits C.R.S. which the use of death prima certificates to establish facie evidence therein, of the facts contained applies only actions; to civil and, second, the hearsay evidence, death certificate сontained depriving thus defendant of the to cross-examine the author of the argument, certificate. As to the first Crim. P. provides entry that an record official or an therein or the lack of entry may such a record or proved be in the same manner as in civil actions. This rule was in effect at the time of the trial of this permitted action and thus the use of the purpose death certificate for the establishing the facts Baur, therein Orth contained. 429 P.2d argument The second alleged hearsay relates to an phrase contained in the death certificate. The death certifi cate shows the cause of hemorrhage death to be cerebral due compound skull fractures due to or as consequence — crushing beneath car. It phrase crushing is the latter — objected. beneath car to which Although would have phrase "been better to have deleted this from the death evidence, certificate before it was аdmitted into no request part on the of the defendant made to do so. The record shows no issue was raised the defendant as to the cause of Small’s death and it is clear that Small was a passenger thrown, in the vehicle from which he was and as a consequence prejudicial was killed. We find no error in these circumstances.
II. Defendant contends that the court erred in admit ting photographs exhibits and which were taken of the automobile involved photograрhs accident. These taken of the car after it had been removed from Clear Creek nearby filling and towed to a station. These exhibits showed *5 388 damage of the auto to the front end and rear
extensive showing laid, was proper A foundation mobile. filling as the same condition at the stаtion was in automobile resting upside the middle of Clear down in it was when photographs are admissible It is fundamental Creek. Gass case. relevant to the issues of the facts which are depict 654; Young People, P.2d Colo. 567; Lanford v. Here, phоtographs relevant to the P.2d 829. charge recklessness, as made in critical issue of the We find no error in their admission. information.
III.
Next,
erred in
is contended that
the court
investigating
give
opinion
permitting
patrol
officer
his
speed
of thе
as to the
of defendant’s vehicle at the time
accident. The record shows that an extensive foundation
by
preliminarily
officer, upon
court
established
which the
might
concerning
opinion
speed
he
ruled
base an
the officеr had
automobile involved. The record shows that
patrolman
years,
been Colorado state
nine and one-half
employment
enforcing
which his
consisted of
traffic
investigating
special
He
laws and
accidents.
has received
training
schooling concerning
investigations
and
accident
and
making
speed
evaluations of
skid marks
in
automobile
from
physical damage
and
to automobiles
accidents.
caused
Subsequent
employment,
to his
initial
received аdditional
required
and he was
to attend school
instruction
this area
year
technique of
each
for a refresher course in the
one week
investigation. He had had numerous occasions to
accident
damaged
marks and tо
vehicles and to evaluate skid
examine
approximate speeds
in acci
of vehicles involved
ascertain
noted,
hereinabove
he testified he had driven this
dents. As
hour,
curve
rate of
particular
at maximum
beyond
of аn
which it was his belief loss of control
investigating
would occur. He
automobile
was the chief
conditions,
He
officer of the accident.
examined the road
surface,
marks,
damages
guardrail,
road
the skid
to the
damages
training,
In
automоbile.
view
physical
investigation on-the-scene
experience
trial
say that the
accident, we cannot
in the
involved
facts
the officer
permitting
discretion
its
court abused
at
concerning
of the vehicle
express his
*6
153, 465
People, 171 Colo.
v.
Hampton
accident.
time
507,
P.2d 229.
Hurford,
290
Colo.
132
394; Ferguson v.
solely question
opinion was
his
weight
be accorded
to
testimony.
admitting this
jury. We find no error
for the
IV.
alleged
argument
improper
relates to
The defendant’s final
during
closing argument.
attorney
by the district
remarks
note,
exception,
that
all,
with one
First of
we
objection to
any contemporaneous
not make
defendant did
course of the
alleged prejudicial
remarks
particular state
carefully
argument. We have
considered
prejudicially called to the
ments which defendant contends
We
testify
own behalf.
jury’s
her failure to
in her
attention
any
find
agree
contention and do not
with this
do
attorney which,
in their
considered
remarks
the district
intеnded,
directly
context,
either
were calculated or
proper
jury’s
the defendant’s
indirectly,
direct the
attention to
or
testify. Martinez v.
162
of her
not to
exercise
also, Montoya
See
v.
425 P.2d
Colo.
particular remarks
428,
being it is were intended presented was that the evidence as jury’s attention to the fact People, supra. justify guilt Martinez v. verdict. sufficient object argument during closing Defendant did jury perform attorney’s zealous exhortation that district guilty the evidence duty find the dеfendant under its objection We no was overruled. find submitted to it. This ruling. abuse of discretion in this attorneys in
It not our function to direct district is However, we note that often times prosecution techniques. review, to the problems can create sеrious on overprosecution however, People. case, we find no In this detriment overprosecution. such judgment is affirmed. ERICKSON JUSTICE MR. DAY and
MR. JUSTICE dissenting. dissenting. ERICKSON
MR. JUSTICE dissent. respectfully I his effort attorney overzealous in
The district
conviction,
course of his
comments in thе
and his
obtain a
closing argument
the clear mandate
violate
Griffin
California,
S.Ct.
14 L.Ed.2d
U.S.
States,
(1st
accord,
United
345 F.2d
(1965);
Desmond
prosecutor
occasions, the
1965).
four
On no less than
Cir.
take
failure to
jury’s
on the defendant’s
attention
focused
jury
alone
pointed out to the
that
He
the stand.
People didn’t
He
added that the
the facts.
then
presented
had
did,
facts,
the defendant
but
make the
jury
on her mind.
with
burden
sits before
not one other thread
that there was
He also told
He
People had offered.
then
except that which the
evidence
*7
say
they
nothing about
that
had heard
went on to
her
accept responsibility
and her failure to
Thereafter,
pointed
out that there was no evidence
acts.
then, he
except
People
produced. Even
that which the
had
jury
of the
was convinced
was not
satisfied
stop
guilt,
jury to convict to
defendant’s
so he exhorted the
highlighted by
type
the evidence
of conduct
that was
trial.
which
attorney’s
The district
сomments violated the.test
195, 425 P.2d
Martinez
down in
v.
we laid
Martinez,
determining
(1967).
said,
supra, we
In
rule, that
prosecutor’s
conduct violated
whether
Griffin
was calculated
whether the comment
context
the test was
jury to the
to direct
the attention
or intended
also,
See
testify.
her
defendant’s exercise of
(1969). Montoya
428,
For the reasons joins my DAY dissent. MR. JUSTICE me in
No. 24720 Henry Espinoza Seferino State of Colorado (497 994) Decided June