Luna v. People, 22838
| Decision Date | 15 September 1969 |
| Docket Number | No. 22838,22838 |
| Citation | 461 P.2d 724,170 Colo. 1 |
| Parties | Phillip LUNA, also known as Phil Luna, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Alfred Z. Craddock, Pueblo, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Denver, for defendant in error.
The plaintiff in error, Phillip Luna, was charged with statutory rape. C.R.S.1963, 40--2--25. The jury returned a verdict of guilty.
The defendant is here on a writ of error. He assigns as error (1) the trial court's refusal to give his tendered Instruction No. 2, and (2) the trial court's denial of his motion for judgment of acquittal.
The testimony of the victim concerning events leading up to and following the alleged rape was corroborated by the state's only other witness, Glen Howard Fay, age seventeen. In addition, Fay testified that the defendant admitted to him that he had had intercourse with the girl. On cross-examination Fay admitted that he, too, had had sexual intercourse with the prosecutrix, at another time and place, on the same day; and that he also had been charged with rape. The cross-examination of Fay in reference to the charge against him continued as follows:
'Q Has that matter come to trial?
'A No, sir.
'Q Have any promises been made to you concerning any leniency if you were to testify today?
The foregoing testimony precipitated the tender of defendant's Instruction No. 2. It read:
'The Court instructs the jury that if you believe from the evidence that the witness Glen Howard Fay testified from a motive of the expectation of leniency, then it is your duty to consider such testimony with grave care and caution before acting upon it.'
The court refused this instruction, stating, 'the Court is of the opinion that this instruction is covered by the stock credibility instruction.'
The defendant did not see fit to designate as part of the record here any of the 'given' instructions. The attorney general, by leave of court, supplemented the record to the extent of Instruction No. 13--the instruction on Credibility of witnesses. In the absence of all of the instructions, we may assume that the court properly instructed the jury on the law applicable to the facts and the issues. Eedy v. McAninch, 141 Colo. 223, 347 P.2d 499; Payne v. Cumming, 136 Colo. 244, 315 P.2d 818.
However, because of the seriousness of the charge with which the defendant stands convicted and the fact that the issue raised can be disposed of on the record before us, we will proceed to resolve the issue.
The requested instruction, in effect, would have advised the jury to weigh the testimony of Fay 'with grave care and caution's because he 'testified from a motive of the expectation of leniency,' due to his involvement with the same girl on an identical charge.
The defendant relies primarily on Slocum v. People, 120 Colo. 86, 207 P.2d 970. It should be pointed out that whereas the tendered instruction cautioned the jury in weighting the testimony of one who anticipates leniency by the court in sentencing him on a separate but distinct like offense, the Slocum case dealt with a cautionary instruction concerning the testimony of alleged accomplices and accessories.
In Slocum, a statutory rape case, the defendant requested a cautionary instruction concerning the testimony of the mother and faither of the victim. The had testified that they had given consent to their daughter to marry the defendant. The marriage did not take place but, instead, on two occasions immediately following the consent, the defendant seduced the victim. The parents confronted the defendant about the matter and told him there was an easy way out of his predicament and that was to marry the girl or face prosecution. father of the victim. They had testified followed.
The court, in disposing of the issue, said,
* * *.'
The defendant argues here that Fay was an Accomplice. Consequently, the record has been examined with this allegation in mind. We find that, although the victim was Fay's 'girl friend' and that Fay took her to the defendant's home and conveniently absented himself from the family room--leaving her alone with the defendant for about twenty to thirty minutes on two occasions (the second of which was the critical one)--yet, there is no evidence of any prearrangement for opportunity; nor do we find that Fay aided, abetted, encouraged, or assisted in the commission of the crime.
Slocum also held that 'the giving or refusal of cautionary instructions rests largely...
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