Feldstein v. People
| Decision Date | 24 January 1966 |
| Docket Number | No. 20902,20902 |
| Citation | 410 P.2d 188,159 Colo. 107 |
| Parties | Benjamin FELDSTEIN, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Sheldon W. Greene, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Denver, Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., for defendant in error.
From the judgment and sentence imposed upon verdicts of guilty of 'aggravated' robbery and conspiracy to commit 'aggravated' robbery, Feldstein prosecutes writ of error, seeking reversal on three grounds. He claims that the trial court committed prejudicial errors (1) in overruling his motion to confine the jury during the course of the trial, (2) in failing to grant his 'request to have the closing arguments transcribed, which thus presents an incomplete record on review,' and (3) in allowing witnesses to testify as to his alleged confession, since it 'was not freely and voluntarily given.'
Feldstein was identified in a line-up and later at the trial by the employee in charge of the Glendale Pharmacy at the time of the robbery as being the person who, accompanied by another man, entered the premises between 8:30 and 8:45 A.M. on January 4, 1961. This employee further testified that Feldstein's companion, at gunpoint, demanded from him narcotics and money. He described how they left the premises and fled after obtaining both.
At the outset of a trial which ended in a mistrial, Feldstein had moved for an order that the jury be kept together until its conclusion. The motion was denied. The day following the order for mistrial and the discharge of the jury, the court started another trial of the case. No motion for keeping the jury intact at this trial, and no suggestion that the original motion was operative, appear in the record. The trial proceeded to conclusion without any intimation coming from Feldstein that the jury should be isolated during the proceeding. Proper cautionary instructions were given at the recesses and adjournments without Feldstein protesting the separation of jurors.
The failure to keep the jury together is raised for the first time in Feldstein's motion for new trial. Nowhere in the motion is there a showing that such failure prejudiced Feldstein in any manner or to any degree other than the charge that a local newspaper was carrying on a campaign at the time against aggravated robberies and other crimes, all of which was said to work detrimentally to Feldstein in securing a fair trial.
In the argument in his brief Feldstein states that he renewed his motion to confine the jury at the second beginning of the trial, and that the record is incomplete in not containing his motion and the action of the trial court denying it. Feldstein made no attempt to have these essential but allegedly omitted parts of the record supplied, pursuant to Rule 112(a), R.C.P.Colo., as the same applies to criminal cases, Rule 39(c), Colo.R.Crim.P.
It should be noted that his designation of record contained no mention of such a motion. All 'trial orders' were included in his designation, but we assume, absent any showing of an effort to have supplied essential parts of the record which are alleged to have been omitted, that the record bears verity and contains all the trial orders. People v. Pyler, 91 Cal.App. 516, 267 P. 370; State v. Groom, 89 Mont. 447, 300 P. 226. Cf. Hille v. Evans, 68 Colo. 98, 187 P. 315.
Before we pass to the next ground of asserted error, we observe that, even assuming such motion was made, Feldstein has not shown 'prejudice resulting to [him] as the result of the separation of the jury.' Amis v. People, 83 Colo. 400, 265 P. 909. 'Mere separation of the jury per se constitutes no ground for reversal.' Id. Whether a jury should be permitted to separate in a non-capital felony case rests in the sound discretion of the trial court. There must be a showing by the accused that this discretion was abused in order to warrant this court's intervention. People v. Potts, 403 Ill. 398, 86 N.E.2d 345; Commonwealth v. Charland, 338 Mass. 742, 157 N.E.2d 538. Such showing of prejudice or of abuse is utterly lacking here.
The circumstances giving rise to the second ground of alleged error are simple but unusual. They occurred at the conclusion of all the evidence in the case. Feldstein had moved for a mistrial and the court was in the midst of a hearing on the motion when a request was made on Feldstrin's behalf that the closing arguments of counsel be transcribed. The court admonished that it and counsel were in the process of attending to the motion for mistrial and should not be deterred by other matters in disposing of the motion.
It is obvious from the record that court and counsel thereafter completely forgot about the request concerning the transcription of oral arguments to the jury. Significantly, the only time Feldstein objected to a remark in the argument for the People, the court sustained his objection. In his motion for new trial, Feldstein failed to preserve the question by pointing out that he had requested transcription of the oral argument without avail.
There are three answers to Feldstein's assertion that prejudicial error...
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