Atencio v. People
| Decision Date | 28 August 1961 |
| Docket Number | No. 19576,19576 |
| Citation | 364 P.2d 575,147 Colo. 566 |
| Parties | Toby ATENCIO, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Bartlett & Ouren, Frank L. Shaw, Monte Vista, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert G. Pierce, Asst. Atty. Gen., for defendant in error.
Toby Atencio, hereinafter referred to as defendant, is before this court on writ of error to review a judgment entered by the trial court upon a verdict of a jury finding the defendant guilty of murder in the second degree. It was alleged in the information that the defendant '* * * on or about the 11th day of February, A.D. 1960 * * * did then and there feloniously, wilfully, and of his own malice aforethought, kill and murder one Rita Marie Delano; * * *'
In substance, the grounds relied on by counsel for defendant for reversal of the judgment are as follows:
1. Errors committed in the examination of the prospective jurors; in that (a) the court allowed the district attorney to qualify the jury to return the death penalty, although there was no evidence upon which such a penalty could be imposed; and (b) the court sustained challenges for cause when jurors had not been fully questioned as to whether they would put aside their scruples and return the death penalty if a proper case were presented to justify that action.
2. That the trial court erred in admitting photographs in evidence.
3. That the trial court erred in refusing to give instructions tendered by defendant concerning his 'theory of the case', namely accidental death, and voluntary suicide.
4. That the trial court erred in giving an instruction on involuntary manslaughter.
5. That there should have been a directed verdict of not guilty for the reason that the evidence was insufficient in law to support the verdict.
On voir dire examination of the jury, the district attorney inquired as to whether or not each juror would return a verdict calling for the death penalty if a proper case were presented. Defense attorneys objected to such questions and asked that the district attorney be required to state whether or not the death penalty would be sought. The court overruled defendant's objections to these questions and each juror thereafter was questioned in regard to returned the death penalty.
The death penalty was not actually sought in this case, no doubt because of the statutory provision which prohibits that penalty where a conviction is based entirely on circumstantial evidence. Such was the case here, because, although the defendant took the stand in his own defense, he did not admit the shooting, nor were any other witnesses to the shooting itself, called to testify.
It is contended that it was prejudicial to defendant not to require the district attorney to state whether direct evidence justifying the death penalty would be presented. Defendant contends that failing to require the district attorney to take a definite position in regard to the death penalty deprived him of the opportunity to select jurymen from among the seventeen persons who were excused because of their predetermined attitudes against returning a death penalty. In short, he contends the district attorney should not be allowed to inquire in this manner unless he has evidence which he feels might reasonably warrant the return of the death penalty.
It is true the district attorney, in examining his case prior to presentation in the trial court might well have concluded that he did not have direct evidence sufficient to warrant the death penalty. However, the charge was first degree murder and it was conceivable that such would be the verdict of the jury. It was entirely possible that an eye witness might be found after the trial had started, or that upon direct or cross-examination the defendant might have incriminated himself to such an extent that the death penalty could be sought. At the time these questions were asked no one could tell exactly what the evidence would show. See State v. Milosovich, 42 Nev. 263, 175 P. 139. The charge here grew out of the death of a young girl by violent means under sordid circumstances. Had the defendant's guilt been proved by direct evidence, the district attorney would have been guilty of neglect had he not sought the death penalty. Considering the unpredictability of trials and the circumstances surrounding this case, the district attorney did not act improperly in qualifying the jury to return the death penalty. Under such circumstances the district attorney should be given considerable latitude in the scope of his voir dire of the jury. The court committed no error on this point.
In questioning the first three prospective jurors, the district attorney asked each if he could conscientiously impose the death penalty in a proper case. Each answered to the effect that he had objections to the death penalty which would not permit him to return such a verdict. They were excused on a challenge for cause by the district attorney. Counsel for defendant made no objection to the court's action in excusing these jurors at that time. It was only midway through the examination of the next prospective juror that motion for a mistrial was made on the ground that the three jurors had been excused improperly. This motion was denied. Thereafter, as prospective jurors indicated they were opposed to the death penalty, they were questioned as to whether they could...
To continue reading
Request your trial
-
Padilla v. People
... ... We held in Atencio v. People, 147 Colo. 566, 364 P.2d 575, as follows: ... 'It is true the district attorney, in examining his case prior to presentation in the trial court might well have concluded that he did not have direct evidence sufficient to warrant the death penalty. However, the charge was first degree ... ...
-
Early v. People
... ... Regarding the practice of death qualification of jurors, we have stated previously that the practice is proper if--at the time of Voir dire--it is uncertain whether or not there is direct evidence of guilt. Hampton v. People, 171 Colo. 153, 465 P.2d 394; Atencio v. People, 147 Colo. 566, 364 P.2d 575. On the question of bifurcated trial, this court has ruled adversely to the defendant's claim on numerous occasions. People ex rel. McKevitt v. District Court, 167 Colo. 221, 447 P.2d 205; Segura v. People, 163 Colo. 491, 431 P.2d 768; Jones v. People, 155 ... ...
-
Hampton v. People
... ... We think the case of Atencio v. People, 147 Colo. 566, 364 P.2d 575, a case strikingly similar to the instant case, is controlling and fully answers this contention. We therein stated: ... 'It is true the district attorney, in examining his case prior to presentation in the trial court, might well have concluded that he did ... ...
-
Monge v. People
... ... People, 134 Colo. 344, 304 P.2d 633. We have repeatedly held that photographs are admissible in evidence if they depict facts which are relevant, and they are not rendered inadmissible because they reveal shocking details of the crime. People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427; Atencio v. People, 147 Colo. 566, 364 P.2d 575; Martinez v. People, 124 Colo. 170, 235 P.2d 810. Photographs which depict the crime scense as they were created by the defendant are properly admitted in ... ...