*1 No. 23008. Augustine People Leland Romero v. The State
of Colorado. (460 784) P.2d Rehearing Decided November 1969. denied November *4 for in error. John Ira Green, plaintiff Moore, General, Dunbar, John P. Attorney Duke W. in for Assistant, defendant Hoecker, Robert L. Deputy, error.
En Banc. Kelley Court. Justice delivered the opinion
Mr. Augustine Romero, defendant, Leland was convicted in the second sentenced to a term degree murder is here Penitentiary. confinement in Colorado He on a of error. writ 1965, that on charged 9, information November Alamosa, feloniously, defendant did County aforethought, and of his malice
wilfully premeditated one and murder Patricia Patricia kill Romero. wife the defendant. 2, on December arraignment 1965,
Upon begun Trial was guilty. Sep- plea entered 14, September was concluded on tember re- jury of the same evening day turned verdict. its *5 on June married
The deceased were defendant and marriage and were born Two children six months death, of her deceased, at time was years age. twenty-five pregnant. was She couple fre- was The life of the marked domestic jealous quent quarrels, mostly the result of defendant’s seeing suspicion was but the deceased unfounded pending the time A action at other divorce men. July part of her death since latter and, living household. a common Romeros in had been parents defendant The her and the deceased lived with during sep- nearby community. Nevertheless, at a other aration each the defendant and the deсeased saw occasionally frequently. took Pa- rather The defendant they spent tricia or a often week movie; out to dinner bought together. and food ends some de- clothes for his their At times wife and children. gave money. fendant Patricia also Shortly midnight, the de- before November 8, parents and fendant home of Patricia’s drove parked alley tapped on the in an behind the house. He her he talk window her bedroom and told wanted put slippers and to her. on a Patricia housecoat and yard They went back outside. stood talked chilly they for a walked moment, but because it was got to his automobile She sat into the front seat. passenger on the and Romero sat the steer- sidе behind ing They her a brief conversation before wheel. had death. they quarrel defendant testified that did not shortly
that he did not threaten after However, her. they pistol entered the from car, he 22 caliber removed playing under the front While seat and “was with it.” “playing” gun discharged. it, with The coroner’s report just discloses that the “bullet entered above the penetrating left ear the skull across to 3 inches above the right ear.” At the coroner trial the testified that “there powder were no on the outside skin bums at all. would burns which But there were powder deep, head.” was held snugly indicate that gun *6 not know at all maintained that he did Romero, times, accidental. loaded; the revolver was that the was killing de- of the thе the gun, Immediately following firing He fendant Patricia her head fell back. “groan”; heard stated (Exhibit 8): I and she shot I believe it
“Well, when was couldn’t warm for her felt something and the blood' —I grabbed I and I inside down hand and and went go my yelled couldn’t it.” believe his mother-
The defendant ran to the awakened house, in-law, Suazo, said, “I shot The Patsy.” police Mrs. and were called and the and an ambulance police responded. of arrested, The taken to the chambers defendant was the trial of his con- by trial advised judge, judge of his stitutional at his an and, attorney rights request, con- choice Romero his attorney was summoned. and for after which ferred minutes private forty-five of that act because defendant’s insistence counsel, ahead accidental, stated, was don’t “Why you go purely with the This did cooperate attorney police.” nor Romero at the trial here. represent In the the defendant was presence attorney morning interrogated police during early hours of November A court was also reporter 1965. and the session was A tran- present complete recorded. became Ex- script proceedings questioned hibit 8. eleven alleges defendant separate assignments which,
error because the affirmance, will be sep- stated and arately discussed.
I. Assignment (a). The For Corpus Delicti Second Murder Was Not Degree Proven. of this contention, relies support Cobianchi v. Peoplе, Colo. 141 P.2d
upon Cobian- 278, 344 P.2d 140 Colo. and Stull v. chi holds that * “* * requires two corpus case in a murder delicti (1) proved: as Death be each which must elements, performed, inflicted; or a wound result of an act unlawfully performed, (2) or such act was such ” * * * unlawfully inflicted another. wound was (1), on his assertion Romero but relies admits response, negate gun accidentally (2). In was fired people urge of malice essential element degree may cir- implied from the second murder discord the evidence marital cumstances; prior sufficient acts threats of violence were jury. justify issue to the the trial court’s submission clearly jury it issue resolved Such drawn and adversely to the defendant. *7 jury’s support verdict,
The which the circumstances already аpparent in addition be mentioned, to those will Assignment evidentiary excerpts from in set forth Error II, which follows. Admitting
Assignment (b). in The Court Erred People’s Into Exhibit 8 Evidence. in his defendant, brief, contends: * *
“* type of Police 8 shows its face the Exhibit on many by questions ac- asked, of them unsubstantiated involving place cusations nor arrests and without time Municipal of the in Court and conviction the * * Attorney Henry *; of Alamosa Blickhahn while Interrogation participate present at this Police not did by asking any though making any objections questions al- or asking questions
the that the Police Officers were given by prejudicial the are more than the answers Romero; Leland Exhibit 8 in its said entirety substantially prejudicial to the defendant nothing and did more than to оf the inflame minds * * * Jury to such an extent that the defendant not did impartial and could not receive a fair and trial at Jury Jury and hands acted evidence con- 242 * * * irrele- Exhibit 8 that was incompetent,
tained vant, immaterial, unsupported.” inadmissible from relies rule following The defendant upon 581, to sustain v. 423 Hawkins P.2d People, 161 Colo. his position: is that evidence
“The universal and well-understood rule guilt is not admissible to general depravity prove who one a defendant charged with While crime. show- state by takes the in this may stand impeached ' rule of a does ing felony, former convictions show or occurrences which extend to admission acts ”* ** bad character on the of the defendant. part Prom an examination of Exhibit it tended neither nor the given asked answers questions interroga to “general show depravity.” challenged defendant’s it, as we wás to show tion, view designed fact motive and cases any malice. marital homicide ill-treatment; or relating ill-feeling; circumstance assaults; violence; threats; jealousy; prior personal toward any similar conduct of attitude husband motive malice in such are wife relevant show 228; 224 Berger P.2d crimes. Colo. Criminal Evidence Wharton’s § rele- indicates summary interrogation A vance defendant’s when tested testimony been married ap- The defendant Berger. Patsy had had they three which proximately years, during period of great intensity. marital troubles in the Early interrogation, attempt order *8 of his thе cause which was justify jealousy responsible wife, for de- threats and beatings admitted explained: fendant It I her engaged
“A. Let me was when was to go back. I back before This fellow came right got married her. he California and we was about from married and get I I didn’t came back and interfered and told her want her since she did. engaged. Anyway, him to see was she I took it she was and we maybe untrue then Therefore, got thought maybe I married and she was still untrue way because I didn’t feel she me loved I loved her. accusing stepping you “Q. Then her of out on was your proof own mind? You no have solid that she did any or have reason believe other than what was your own mind?
“A. Yes.” point,
At another the defendant admitted that he had threatenеd, man,” if he “ever found her with another only he would shoot her. On one occasion did Romero anyone Patsy stepping claim that had told him that “was working A project out.” man from Pueblo, on a in Ala- mosa, told Romero that he “should out that he had watch somebody seen [his] wife with at another restaurant.” Romero also claimed some of the manifestations jealousy provoked by were rumors of certain nocturnal Patsy (his activities another Suazo maiden wife’s name). provocation This however, from ended, two prior six weeks he when, asserts, fateful he event identity learned the true of the woman in the involved “things going rumors. From that time forward started according real smooth,” to the defendant. explаined
Romero’s admissions in Exhibit 8 also beatings threats and the which he to his administered infidelity wife in this He manner. would her of accuse and threaten to kill her in order to her to admit induce up,” marital infractions; then he would “beat her really intending but not to kill he her; at all times could “control” himself, that is, he “* * * go up finally gave could so far until she either doing would me tell that it was her that was these — things. I never, could never I couldn’t see how she yet could take that and not tell me it her.” interrogation questions continued with these answers:
“Q. couple you I know a over; times her worked you up. beat her — up Yes, “A. I did beat her but it like seemed see when *9 when her, ‘Patsy, I to tell I her back when used wanted said, ‘come I you,’ really I that and I want do a like thing Because at the time.’ wrong not home at the time right how thinking I to start so used she used to take long come home. come she didn’t “Q. From where? her
“A. From folks. “Q. to do? thing this a natural Isn’t me of afraid because she was used to leave “A. No. She beat her up. going that I was thinking this, of “Q. a good reputation carried Leland, you pretty this true? isn’t
“A. IYes, did.” could from which jury to the admissions addition malice, exculpatory contained many the exhibit infer claim that of defendant’s statements support were of nature was accidental. Statements killing didn’t because I kill her, effect he “didn’t that Patsy’s he it”; go no that did have intentions her; to threaten living, she was home, where parent’s told he incident the fatal immediately following that Suazo, Mrs. devil into
“Mom, got I shot The Patsy accidentally! be- It had to be the devil I know it was the devil! gun! cause bullet there.” there wasn’t his exhibit is statements supporting with replete conduct, relationships of accident and “theory” sufficient if believed were which, jury, attitudes to have malice. negated challenged also Exhibit 8 was admissibility the de it violated
by the defendant the ground self-incrimination; against fendant’s constitutional right that, it was coerced because the circumstances, involuntary. he prior interrogation
Romero concedes he silent; anything to remain advised his right charge a trial on any him at said could used against of his counsel wife; death out of the arising *10 appointed; counsel, choice was that he conferred with voluntarily questioning. after he which to submitted upon relies circumstances which the defendant support to invol- contention that statement the was untary may be summarized as follows: experienced present
That while Romero had counsel during interrogation permitted the “he to be same threatening, unorderly carried in a allowed manner; questions wholly to be asked that were irrelevant to atmosphere case under an of intimidation”; counsel that single objection during “did not make one the entire interrogation”; argu- questions “That the asked were mentative fact, statements of foun- accusations without place suggestion dation, without of time.” An examination of that us record to conclude leads аrgument. appears there is no merit to the defendant’s It Patsy that night; the death of Romero about mid- occurred the defendant was advised his constitu- rights by judge tional at 1:30 A.M. the same tried who the case; that Romero and for his counsel conferred forty-five interrogation began minutes before the at interrogation A.M.; 3:15 and that the at was concluded approximately 4:15 A.M. any against
The exhibit fails to disclose threats by any conducting ques- ques- defendant of the officers tioning. There is no indication Romero was tioned than more one officer at a On time. contrary, considering present the fact that there were police deputy attorney, five officers and a district examination or- to have been an conducted in derly fashion. objection
In his exhibit, admission the motion for new trial his brief, the defendant single object alludes the fact that counsel failed to to a question. according This, constituted representation effectively deprived ineffectual rights defendant of his under the Fifth and Fourteenth Amendments the Constitution of the United States. during present counsel was The fact that experienced objections any interpose and did interrogation the exami- in which the manner is some indication nor coercive. not disorderly was nation was conducted had con- his counsel as defendant Also, indicated, to the questioning, for minutes forty-five prior ferred counsel nor neither suggests which nature not surprised beсause were objected they A them. anticipated but had in fact of the questions, the propo- is a brief to the exhibit rebuttal reference counsel coercive and that were sition that the questions exami- the start Shortly ineffective. after occurred: following nation the exactly to tell us “Q. time we want you at this Leland, *11 — intentions were your what what were your thoughts — n know that tonight. that We happened and everything is that in the your past, have had trouble with wife you correct? Yes,
“A. that’s true. to take “Q. your have you attempted Isn’t it true that in life the wife’s past? Blickhahn.) I that? (Directed
“A. Shall answer Mr. It’s true. Well, I have nothing don’t hide. you
“Q. crucify not here to the truth. We are We want to- exactly is what happened in All we want any way. us truth, truth. If it’s the let the know. night; to take wife’s Yes, my if I threatened “A. said had you if ever found life, in a I told her that I way yes. also, But, she her and also man I would shoot her with another reason the same thing said she would do me. of Patsy the name by is there was another girl there was until they I confused Suazo in and therefore was town there after found out told there was such a and I girl me real smooth.” going from there on started things was that the with apparent It seems his satis counsel, of had determined to own blessing his of and accidental, his killing faction wife of officers police if he submitted questions might his answers convince the of this officers fact. The strategy fact that the which and counsel they adopted produce hoped not had did result which necessarily represen for is not of indicative ineffective People, Torres tation counsel. v. 159 Colo.
P.2d 10. virtually questions is
It true that of the asked all by police “leading” be officers were and would not permissible on examination in of law. direct a court lawyers Police officers are not it trained and is not ex pected interrogation suspected felons will formality with conducted the same decorum that only pro questions obtains at a It trial. is natural pounded police interrogation officers in an of a sus pected leading questions, felon would take the form of upon as cross-examination in a trial. previously question
This court has considered Downey raised defendant. 121 Colo. 307, 215 P.2d we find this statеment: any “We are aware case in which court has alleged solely an upon held confession to be inadmissible ground by interrogation it that was obtained * ** following accused his arrest. We that the hold law enforcement officers state in their solve effort justice, a murder case, interest must have arresting questioning reasonable latitude one justifiably suspected being murderer, if in so *12 doing investigating give proper the authorities consider- suspected well-being ation to the comfort and person, and conduct in from themselves a manner free promises, suspect, a threats, mistreatment of the may evidence, confession thus secured in be received though periods even it was the result of several extended interrogation of of the accused.” period questioning
Here, there was but one of which sug- slightest lasted for about one There is not hour. the gestion in the record the that manner in which the in-
248 degree
terrogation
approached third
was conducted
which,
course, cannot be tolerated.
methods,
the offense
seriousness of
because
the
Also,
a substantial
fact
the statement contained
and the
that
part
must be ex
malice,
the record
the evidence
proper procedural
whether
amined further to determine
reaching
by
steps
employed
deter
its
the court
were
the
under
the
was admissible
mination that
exhibit
1774,
368,
Denno,
v.
U.S.
doctrine of Jackson
S.Ct.
People,
Compton
419,
v.
166 Cоlo.
12 L.Ed2d
and
People,
122 Colo.
See, also, Read v.
We clarity with unmistakable record demonstrates extrajudicial have judge statements trial found the voluntarily been made: During Court recess the
“BY lunch THE COURT: again, memory to refresh its as to has Exhibit read question the contents thereof. Where the now comes by brought enforcement from the accused is law directly Cоunty alleged scene of the crime Court- is of his house and there the accused forthwith advised requests rights; where the accused constitutional attorney representation of his choice immediate an immediately attorney of summoned his choice is period appear with confers for a time and does private conference and after the the defendant attorney, together, inter- consent to the accused and his rogation he taken enforcement officers and is law interrogation Reporter and is there before a Court into *13 interrogated, sur- so as to the circumstances facts and rounding alleged though inter- And even crime. things rogation is it some so conducted that lеaves any or his desired, still at time the defendant interroga- object counsel, both, either one or could any point. stop tion at been it But the defendant had immediately interrogation by so advised before the any might against Court that statements interests against be used him held at the time trial and voluntarily subjects he, nonetheless, in- himself to this terrogation object.” and his counsel does not
Following ruling this to excise defendant moved portions granted part of the The court exhibit. and denied part part motion. excised statements are of the record before court. this voluntarily
We find that the and, exhibit was made portion an from examination of the non-excised contrary it exhibit, that, con- the defendant’s the statements are tentions, either relevant and material properly they to the issues and admissible or are of such though they a character that even irrelevant are not prejudicial to the defendant.
III. Assignment (c). Permitting The Court Erred In Attorney The District To An Make Issue Of Defendant’s Financial Condition.
An essential element case defendant’s and one sought implication which he to refute the of malice was his assertion that he and his wife their had reconciled prior evening. marital differences to the fatal As evi- sought prove dence of the reconciliation he and his wife had been he planning purchase a mobile they together. so home could resume their lives Out testimony developed of an issue as to defendant’s ability purchase financial to finance the of such an item. attorney proprietor The district cross-examined agency, the mobile home as well as the judgments, reference to bad debts and related matters *14 financing ability for such to to obtain as a the defendant’s Undoubtedly, was purchase. this cross-examination jurors. of the to in the minds raise doubts intended attorney general argues that the cross-examination The purposes, particularly impeachment in proper for was interjected the had of the fact that the defendant view proceedings. agree. circum- Under the issue into the We of defen- of this case the cross-examination stances rating рroper was as to Romero’s credit dant’s witnesses impeachment purposes. for
IV. Assignment (d). Admit The Erred In Court City ting Conviction Of Prior Evidence Defendant’s Ordinance. city of a a for a
The reference to conviction violation dialogue defen- certain between the ordinance relates to interrogation during police re- a officer dant and actually subject was in Exhibit The matter corded question on in answer to a introduced another subject. type of offense It is unclear as to the clear it had discussion, in the but it seems involved relevancy particular However, no to malice. the issue bearing appear an a it does to have somewhat remote apparent strainеd effort defendant mend the relationship the defendant which existed between Patsy’s no mother and We note that there father. objection questions ordinance reference during interrogation, violation nor was there questions motion excise the and answers at time In this state Exhibit 8 was offered evidence. view of assignment is of the the defendant’s error record without merit.
V. Allowing Assignment (e). The Erred In Court Attorney’s The Throughout To At The District Table Sheriff Sit Jury. Trial Of The The And The Presence ordered On the motion of the the court The that all witnesses be from the excluded courtroom. per- granted attorney requested the court district table with mission for the sheriff to sit at the counsel except- objected attorney. the district Thе defendant ing especially in view the the sheriff from the order, signed fact that the sheriff had the information. contention is without merit. defendant’s complained
matter
the discretion
was within
prejudice
trial
No
to the defendant
court.
demonstrated
no
consequently,
from the
there was
record;
abuse
discretion. Edwards
Colo.
VI. Assignment Allowing (j). The Erred In Court *15 Phillips Testify On Ben To Matters Sheriff To New Rebuttal. complaint failed to
Defendant’s is that the sheriff right panel door mention the blood on the front stains edge right until he was and the of the seat on the side prejudice said called on His claim of “that is, rebuttal. testimony brought could out before the defendant anticipate developed for or be the know the evidence to purpose prejudice of to sole a climatical upon closing testimony in the of all and evidence * * case object testimony
The defendant at did presentation, time of its on surre- but after he testified body buttal that of his wife not been moved had following accident,” “the he moved for a mistrial. prejudice no
There have been to the defen- denying initially dant He testified motion. body. position' of of
he had not moved the view body pres- wound, location of the fatal right panel, of if true, ence blood door tends to question testimony. testimony the truth was, properly therefore, rebuttal nature.
Regardless categorization testimony, of the range falls within the broad matters which lie within being and, no the discretion the trial court there 252 cannot disturb we
showing prejudice 94, v. Colo. People, Martinez 129 the trial court’s ruling. 879; 74 508, People, Porter v. 31 Colo. P. 654; 267 P.2d 435, cert. States, F.2d v. United 316 Meat Co. Imperial L.Ed.2d 54. 57, denied 84 S.Ct. 375 U.S.
VII. Re Erred In Assignment (g). The Court Murder From Degree To Remove Second fusing Consideration Of The Jury. on this is limited
The defendant’s argument point this reason: * “* * as a was insufficient because the evidence whole second degree for the to consider first and and Jury as to second murder and to its verdict guilty render murder.” degree
Our discourse I heading substantially disposes under however, of this We hasten to assignment of error. add, un- are the elements second murder degree of another without deliberation pre- lawful killing be Malice does hot have to meditation, but with mаlice. but There was sufficient expressed, may implied. evidence warrant issue to the submitting jury. Berger v. Lutz v. People, supra; People, 133 Colo. 646; 665; 293 P.2d Tate 247 P.2d People, 125 Colo. Kent v. 8 Colo. 563, P.
VIII. *16 The In Assignment (h). Giving Court Erred Instruction 14 Over In Re Objection Defendant’s And To Give Defendant’s Instruction fusing Tendered No. 14, Instruction No. to which defendant reads:' objects, “The court instructs that statutes of this jury state define excusable homicide as by misadventure follows:
‘Excusable homicide misadventure is when a by person is lawful act without intention of doing any killing, kills another.’ yet' unfortunately “The court further instructs that one of the jury
253 killing by interposed is defenses the defendant that — by or accident mis- excusable, is, was that it was you elements three The court instructs adventure. this enter into defense: appear LELAND It must AUGUSTINE
“1st. engaged was in a act. ROMERO lawful carelessness; he free from That was “2nd. accidentally killed That he did intend but
“3rd. the deceased.” portion of tendered
The material Instruction No. is: (Patsy) “If shot of Patricia which caused the death wholly so far as the V. Suazo Romero was accidental intention on his concerned, defendant was and without part any person, to kill defendant was and not while the your in the commission an unlawful then verdict act, ” Guilty.’ should be ‘Not by refusing his defendant contends that tendered his instruction court an instruction on denied him theory espouses of the case. It the defendant determining the view that the to be criteria used killing purely or sub- whether a was accidental not is may jective. he his tendered instruction the fact that consequence of no not have been free from carelessness is long as as the act was accidental “as far as the assignment is no to this concerned.” There merit of error. 293
In Lutz P.2d Colo. court of the defen- sustained the trial court’s refusal because, tendered instruction dant’s “* * * merely ‘con- instruction stated a tendered stating excusable tention’ without constitutes what ” * * * homicide accident misadventure. Although an instruction on a defendant is entitled to theory cannot omit case, such instruction necessary legal of his The trial court elements defense. properly tendered Instruction refused defendant’s corrctly the law of this 2. Instruction stated No. No. *17 254 Jabich supra;
state on Lutz v. killing. People, accidental 58 P. 1092. Colo. - IX. In Assignment (i). Refusing The Court Erred As To Instruct The On Delicti Defined Jury Corpus Instruction Defendant’s Tendered No. in-
Since, above, correctly as out the court pointed structed the it was not error jury corpus delicti, refuse to an instruction on the same give proposition tendered defendant.
X. Assignment In Re (j). The Court Erred From The moving Voluntary Manslaughter Jury’s Fact, Consideration As A Matter Of Law And Notwith Consent standing Of Counsel' For Defendant. It from the brief of the defendant that,
“* * * District man- Attorney suggested voluntary slaughter not submitted and unwisely injudi- for ciously, Counsel the defendant assented to' removal of there- voluntary and the Court manslaughter upon eliminated voluntary but at manslaughter same time left in the case for consideration Jury first degree murder, invol- secоnd murder and degree * * * untary which we manslaughter believe was error insofar as the defendant had contended from be- in all ginning preliminary as interrogations and had of the case theory accident, was an shooting It is hornbook law a trial court in- should only struct those jury upon lesser included offenses upon which there is competent evidence base a conviction.
An examination the record discloses that there was no evidence from which could have found jury provocation any attempt by the victim to injure defendant. This is under required C.R.S. 40-2-5. It provides:
“In cases of voluntary manslaughter there must abe *18 the upon inflicted injury highly provoking serious and an irresistible passion to excite sufficient killing, person killed or the person an attempt in a reasonаble person, commit, killing.” the on injury person a serious personal an give the court did out that be pointed It should involun- to the jury a verdict and submit instruction manslaughter. tary
XI. To Failing Erred In (k). The Court Assignment An Created Defendant Piad That The Jury Instruct The Issue Was That And Guilty” His Plea Of “Not Issue By For The To Decide. Jury the contends in
Defendant, assignment, this as a statement to the contained jury court’s instructions but charged, was crime which the defendant with had defendant the jury it failed to advise issue. thereby joining a of not guilty, entered plea of “not guilty,” a that without plea Defendant argues therefore, and, to resolve jury no issue for the there was a nullity. the trial was recognizes The defendant Landford but claims state, 893, as the law this
Colo. 365 P.2d had Landford, it is not applicable. of insanity.” a of “not reason guilty by entered plea by that no issue raised any record showed disposition Then, to the opinion, according plea. *“* * objection trial without Defendant proceeded ‘not as though in all contested case respects was made entered. No mention had been guilty’ plea matter trial, and the motion for a new point of the trial court attention not been called to the has ”* * * in any way. defen- time the indicates that at the The record here he was without for arraignment initially appeared dant appointment The defendant requested counsel. court indigency as to hearing After counsel. him. His sub- counsel to represent his present apрointed at hearings in court were pre-trial appearances sequent on his “motion for bail” and “motion for So discovery.” far as the record ar- the defendant was not discloses, and did not enter a raigned plea guilty. trial, the instructions transcript “given” and the briefs of the defendant and the demon- People strate that as Landford, proceeded trial without and in objection all contested respects case as the “not entered. though guilty” had been plea
The defendant was not prejudiced by procedural This omission. be the exact case C.R.S. which to meet. 39-7-9(2) designed This statute reads:
“And in case the party indicted informed against, *19 not, shall for any reason, be by as arraigned provided and shall thereafter law, enter the the triаl upon upon charge contained in information, said indictment or with- out objection, because been so having arraigned as by then in provided event, and error law, such or omission called to the attention of trial being the court or at time judge, any the of said during progress or at trial, any thereafter, time in of conviction, case said court or shall an judge cause order to be of a entered, plea not guilty, said order to take tunc effect nunc pro as of the of and day before the immediately beginning of said trial, and upon order, said an issue entry upon in charge contained said indictment or infor- mation shall be deemed to have been between raised the people аnd the defendant in such case as of the date of the beginning trial, said no arrest and motion in or judgment otherwise shall be sustained or court because of judge the omission of a in plea behalf of defendant at or before of such the beginning trial.” with the compliance edict of the statute, hereby we
call to the attention of the trial or court the “error omission” and direct that a nunc tunc order aof pro of not plea enter guilty pursuant the statute. A review of the entire record, assignments support arguments thereof in the defendant’s error, and deprived fair any him of a error which fail to disclose trial. judgment is affirmed. Justice and Mr. Mr. Justice Groves Day,
Mr. Justice Lee dissent. dissenting.
Mr. Justice Groves My disagreement ma- respeсtfully with I dissent. application jority opinion of the statement concerns evi- portions of Exhibit admitted that the therein to the issues material either relevant and dence “are they a character properly are of such and admissible prejudicial they though are not irrelevant that even portion admitted A of the exhibit the defendant.” following one statement contained the evidence interrogating police officers: up up down foul That came with that
“Just a minute!
all
Manager
City
city job
Delbert
and
there
city
up
with
trouble all came
Romero when
you
court
into
over
went
the cement and stuff
you
eighty
it?
judge
fine, didn’t
an
dollar
hit
with
suspend
you
if
judge
fine
And the
you
told
he would
Hospital.”
go
would
State
Obviously
mаterial
not relevant and
this statement was
*20
prej-
majority opinion
to be not
it is held
and under the
crime
of some
To
the mention
commission
udicial. me
of
jury’s
charged
to color the
to that
would tend
unrelated
suggestion
against
his
The
attitude
defendant.
(well
Hospital
to be
known
to the State
admission
defectives)
hospital
removes
for insane and other mental
concerning
prejudicial
any
evi-
nature
doubt
firmly
more
established
law are
dence. Few rules of
not admissible
that evidence is
state than the one
this
has
accused
show
or tends to
which shows
wholly independent
offense
a crime
committed
People,
of which he is on trial. See Ruark
158 Colo.
v.
287,
“Ordinarily,
prosecution
particular
in a
for a
crime, evi
dence which
tends
show that the accused has com
charged
mitted other crimes
is
unrelated
the crime
People,
irrelevant and inadmissible. Kostal v.
144 Colo.
505,
Cert.
357 P.2d
81 S.Ct.
denied,
U.S.
judicial philosophy underlying
5 L.Ed.2d
The
tendency
exclusion of such evidence is that its
to inflame
prejudice
jury outweighs
evidentiary
its
value
and that an
is
accused
entitled to be
on the crime
tried
charged
Naranjo
being
generally.”
and not for
a criminal
The defendant’s suf- were preserve ficient to the error of the admission objec- evidence and, after the court had overruled these they by tions, were not waived the defendant’s subse- quent portions effort to have majority opinion of the exhibit excised. states that this evidence bearing “to apparent havé a somewhat remote on an effort relationship the defendant to mend the strained Patsy’s which existed between the defendant mother inexplicability and father.” is There a certain in the majorities’ beyond statement; but there that, even if apparent was such an effort of the this does justify majority not the error would committed. justify the admission of this evidence fact attorney present during interrogation the' did object at that time. We are not here concerned with objections interroga- or lack of them at the time tion, but rather with the admission of evidence at time trial. Day
I am authorized to say joins Justice Mr. this dissent. Justice Lee
Mr. dissenting. I concur in the Justice dissenting oрinion Mr. Groves. I dissent for the further and additional reason it is belief that my the court did not sufficiently
259 jury homicide. instruct on the of excusable laws concerning sub- Instruction 14 omits defense No. (C.R.'S. portions 40-2-18[l] stantial 1963, the statute [2]); jury burden to the fails advise the relative (C.R.S. proving excusing circumstances homicide 40-2-20); jury acquit and fails to instruct (C.R.S. 1963, the accused if it find excusable homicide 40-2-19). responsibility The ultimate court’s to is the fully completely jury the law instruct pertains legal case, it asserted, both as defenses alleged as well as to the crimes been committed. have People, Owen v. 953; Kolkman Colo. 195 P.2d People, v. 8,300 575; Stoltz v. 59 Colo. Colo. P. 342, 148 For reason, 865. this additional believe the P. I judgment of conviction and the cause should reversed for remanded a new trial.
No. 22556. County The Board of Boulder Commissioners Mildred L. Johnson. Colorado County, (460 770) P.2d Decided November