Lucero v. People

Decision Date20 December 1965
Docket NumberNo. 21466,21466
Citation409 P.2d 278,158 Colo. 568
PartiesWilliam LUCERO, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Walter F. Scherer, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Chief Justice.

Plaintiff in error was found guilty by a jury of unlawful possession of cannabis (marijuana) in violation of C.R.S. '53, 48-6-2. He was thereafter sentenced to a term of eight to twelve years in the State Penitentiary. From this judgment he seeks review by writ of error.

We will refer to the plaintiff in error as the defendant or by name and to the defendant in error as the People.

The record discloses that on November 22, 1963, Denver police officers, acting under a search warrant and accompanied by a Federal narcotics officer, searched the premises occupied by Lucero and his family. A cigarette and two tobacco this were found. The contents of the cigarettes and the debris found in the cans were identified by an expert as cannabis, a narcotic drug. The defendant entered a plea of not guilty but, at the trial, adduced no evidence in his own behalf.

In his writ of error, Lucero urges the following points as error: (1) the affidavit for a search warrant and the warrant based thereon were fatally defective, and (2) the evidence obtained as a result of the illegal search weas erroneously admitted into evidence in violation of defendant's constitutional right to a fair trial as guaranteed by the United States and Colorado Constitutions.

The points advanced by the defendant are raised for the first time on this writ of error. No objection to the alleged errors was preserved by a motion to suppress, by objection to the admission of the evidence, or by motion for a new trial. Generally, such omission is fatal under Rule 37(b), Colo.R.Crim.P.

Defendant's counsel, on writ of error, was not counsel at the trial level. While present counsel recognizes the effect generally of the failure to object, he argues that here the errors of which he complains have so encroached upon the constitutional right of the defendant to a fair trial, that the matter should be reviewed by this Court.

We would point out that both Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and Hernandez v. People, 153 Colo. 316, 385 P.2d 996, dealing with illegal searches and seizures, had been announced for some time before the trial of this case. Where the defendant, as in this case, had ample opportunity to object to the admission of...

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18 cases
  • People v. McCoy
    • United States
    • Colorado Court of Appeals
    • June 18, 2015
    ...a new trial," the court declined to address all of the new claims except one—the sufficiency claim. Id . (quoting Lucero v. People, 158 Colo. 568, 570, 409 P.2d 278, 279 (1965) ). The court addressed the defendant's new sufficiency claim "on the basis of the record now before [it]." Id .¶ 1......
  • Armstrong v. People
    • United States
    • Colorado Supreme Court
    • May 28, 1985
    ...inadequate and ineffective assistance of trial counsel. Citing Morse v. People, 168 Colo. 494, 452 P.2d 3 (1969), and Lucero v. People, 158 Colo. 568, 409 P.2d 278 (1965), this court declined to consider the issue and noted that the defendant was free to raise it in a Crim.P. 35(b) 11 appli......
  • Polster v. Griff's of America, Inc.
    • United States
    • Colorado Supreme Court
    • April 8, 1974
    ...of justice. Ross v. Colo. Natl. Bank, 170 Colo. 436, 463 P.2d 882; Cruz v. People, 166 Colo. 168, 442 P.2d 416; Lucero v. People, 158 Colo. 568, 409 P.2d 278; Scheer v. Cromwell, 158 Colo. 427, 407 P.2d 344. It is by the operation of this rule that the trial judge is alerted to evidentiary ......
  • Marshall v. People
    • United States
    • Colorado Supreme Court
    • August 8, 1966
    ...the defendant are revealed in the giving of Instruction 8 and the point does not therefore merit our further consideration. Lucero v. People, Colo., 409 P.2d 278; Brown and Glymph v. People, Colo., 408 P.2d Defendant contends in his second and third assignments of error that the People fail......
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