Abeyta v. People
| Decision Date | 08 March 1965 |
| Docket Number | No. 20922,20922 |
| Citation | 400 P.2d 431,156 Colo. 440 |
| Parties | Roger ABEYTA, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Don B. Oliver, Lila I. Ludlam, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Sp. Asst. Atty. Gen., Denver, for defendant in error.
Roger Abeyta was convicted of robbery and conspiracy to commit robbery of a store located in Denver, Colorado. From that conviction he brings writ of error here.
The record shows that on November 30, 1961, four men simultaneously entered the store in question and proceeded to execute the robbery for which Abeyta was convicted. Three witnesses, one of them a patrolman of the City and County of Denver, who were present inside the store at the time of the robbery, positively identified the defendant as one of the men who perpetrated the crime.
Abeyta contends here (1) that the district attorney made improper prejudicial statements in his closing argument; (2) that the court permitted into evidence improper hearsay; and (3) that there was no evidence of conspiracy and that as a result of these claimed errors we must reverse the case for a new trial. We do not agree.
We deal first with the contention that improper prejudicial remarks were made by the district attorney in his closing argument. No record was made of the closing argument, nor did trial counsel request that such a record be made. No objection was lodged to the alleged 'improper prejudicial statements,' and they do not appear in the reporter's transcript on file here. We have repeatedly held that the failure to make timely objection to alleged improper remarks generally precludes review by this Court of alleged error of the trial court in permitting such remarks. Milow v. People, 89 Colo. 469, 3 P.2d 1077 and the cases cited therein.
Moreover, since the record itself does not disclose the remarks complained of, or the context in which they were used, it is impossible for us to determine what actually transpired at the trial in this connection, or to determine the propriety of the alleged remarks. See Montez v. People, 110 Colo. 208, 132 P.2d 970.
Abeyta's contention that improper hearsay was admitted is based on the trial court's permitting one of the witnesses to testify on redirect examination that the district attorney had advised him to tell the truth when testifying. On cross examination, counsel for defense had asked the witness if he had discussed the case with anyone, and the witness had answered that he had discussed it with the police officers investigating the case, and with the district attorney that morning. The purpose of the district attorney's questioning was to rebut any unfavorable inferences which might have been drawn from the cross examination. This he had an unqualified right to do. People v. Tucker, 142 Cal.App.2d 549, 298 P.2d 558; State v. Tatko, 119 Vt. 459, 128 A.2d 663. The evidence was not offered as substantive proof of the crime but only to rebut some inferences that the witnesses' testimony had been suggested by the district attorney. As such, the evidence was clearly admissible.
The hearsay rule, with certain exceptions, generally forbids evidence of out of court utterances...
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State v. Gilman, s. 1041-E
...came together and expressly agreed to pursue a common design. State v. Main,94 R.I. 338, 180 A.2d 814 (1962); Abeyta v. People, 156 Colo. 440, 400 P.2d 431 (1965). It is enough if they knowingly engage in a mutual plan to do a forbidden act. Conspiracy can rarely be proven by direct evidenc......
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...e. g., People v. Pickett, 194 Colo. 178, 571 P.2d 1078 (1977); Mathis v. People, 167 Colo. 504, 448 P.2d 633 (1968); Abeyta v. People, 156 Colo. 440, 400 P.2d 431 (1965). D. The Ambulance Driver's The defendant next challenges the trial court's denial of his motion to strike the testimony o......
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People v. Gomez, 80SA494
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People v. Larson, 26961
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