People v. Barker, No. 25020

Docket NºNo. 25020
Citation501 P.2d 1041, 180 Colo. 28
Case DateOctober 10, 1972
CourtSupreme Court of Colorado

Page 1041

501 P.2d 1041
180 Colo. 28
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Raymond Paul BARKER, Defendant-Appellant.
No. 25020.
Supreme Court of Colorado, In Department.
Oct. 10, 1972.

[180 Colo. 30] Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Randolph M. Karsh, Deputy State Public Defender, Denver, for defendant-appellant.

ERICKSON, Justice.

Three separate informations charged the defendant, Raymond Paul Barker, with simple robbery. 1967 Perm.Supp., C.R.S.1963, 40--5--1. The three robberies did not occur on the same day, and three different individuals were robbed. All three cases

Page 1042

were consolidated for trial over the defendant's objection, and a motion for a separate trial on each of the offenses was denied. The jury convicted the defendant of all three crimes. Thereafter, the trial court imposed concurrent sentences for the three robberies.

The primary issue on appeal is whether the failure to grant a separate trial to the defendant on each of the three robbery charges was reversible error. The defendant did not designate, [180 Colo. 31] and the record does not contain, the proceedings that took place when the cases were consolidated for trial. The defendant, apparently, filed a motion for a severance, but that motion is not part of the record, and the record does not contain a transcript of the proceeding which occurred at the time the motion for a severance was heard. Counsel for the defendant also failed to renew his motion for a severance at the close of all the evidence.

The defendant has also raised issues relating to the procedure followed in conducting a photographic lineup and as to the instruction on presumption of innocence. The instruction on presumption of innocence includes the wording which we condemned in Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

To justify an imperfect record, the defendant argues that the errors which were committed in the trial court were of such significance that they should be deemed to be 'plain error' which affects the substantial rights of the defendant. Crim.P. 52(b) permits our intervention only if the errors which were committed affected the substantial rights of the defendant and were 'plain error.' However, microscopic hindsight, which seems to follow every conviction, does not dictate that we reverse a case where error has not been properly preserved. After reviewing the record, we do not deem the errors presented on this appeal to be the 'plain error' which is contemplated in the rule and which permits our intervention. Crim.P. 52(b).

I.

Instructions

The instruction on presumption of innocence is the same as that which was considered in Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970). In Martinez, we said that the instruction on presumption 'is a stock instruction which has been used by the courts for years, and because of its long history we would not hold that the giving of the instruction was reversible error. Nevertheless the instruction is not a good statement of the law and the giving of it has fallen in disrepute in other courts. For Colorado to continue to use it [180 Colo. 32] would perpetuate our blind tread down the path laid out for us by those who have gone before.'

The instruction in issue contains language which qualifies the presumption of innocence with the statement that the presumption is not intended to help the guilty escape. The qualifying language improperly modified the requirement behind the instruction on presumption of innocence, and we declared that it should not be used in the future. Since this case was tried after our directive in Martinez, we would be compelled to reverse if defense counsel had objected to the giving of the instruction. In this case, no objection was made, and the error was not specified in the motion for a new trial. Crim.P. 30 clearly specifies:

'All instructions shall be submitted to the parties, who shall make all objections thereto before they are given to the jury. Only the grounds so specified shall be considered on motion for a new trial or on review. . . .'

...

To continue reading

Request your trial
76 practice notes
  • Hagos v. People, No. 10SC424.
    • United States
    • Colorado Supreme Court of Colorado
    • November 5, 2012
    ...error forty years ago from the United States Supreme Court's formulation of constitutional harmless error review. See People v. Barker, 180 Colo. 28, 32–33, 501 P.2d 1041, 1043 (1972) (citing Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972)); see also Schneble, 4......
  • People v. Dunaway, No. 02SC675.
    • United States
    • Colorado Supreme Court of Colorado
    • April 12, 2004
    ...by sufficient proof.13 Under due process, a criminal defendant is "entitled to a fair trial, but not a perfect trial." People v. Barker, 180 Colo. 28, 33, 501 P.2d 1041, 1043 (Colo.1972). Thus, we are not compelled to deviate from tradition to protect against the remote possibility of error......
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...sentencing because the defendant has already been convicted. But “no definition [of plain error] will fit every case.” People v. Barker, 180 Colo. 28, 32, 501 P.2d 1041, 1042 (1972); People v. Cook, 197 P.3d 269, 276 (Colo.App.2008). The underlying principle, “a reasonable possibility that ......
  • Callis v. People, No. 83SC110
    • United States
    • Colorado Supreme Court of Colorado
    • December 10, 1984
    ...affected the fairness of the trial proceedings. Quintana, 665 P.2d 605; see also Taylor, 197 Colo. 161, 591 P.2d 1017; People v. Barker, 180 Colo. 28, 501 P.2d 1041 Our review of the record in this case provides us with utmost assurance that the trial court's failure to excise from the defe......
  • Request a trial to view additional results
76 cases
  • Hagos v. People, No. 10SC424.
    • United States
    • Colorado Supreme Court of Colorado
    • November 5, 2012
    ...error forty years ago from the United States Supreme Court's formulation of constitutional harmless error review. See People v. Barker, 180 Colo. 28, 32–33, 501 P.2d 1041, 1043 (1972) (citing Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972)); see also Schneble, 4......
  • People v. Dunaway, No. 02SC675.
    • United States
    • Colorado Supreme Court of Colorado
    • April 12, 2004
    ...by sufficient proof.13 Under due process, a criminal defendant is "entitled to a fair trial, but not a perfect trial." People v. Barker, 180 Colo. 28, 33, 501 P.2d 1041, 1043 (Colo.1972). Thus, we are not compelled to deviate from tradition to protect against the remote possibility of error......
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...sentencing because the defendant has already been convicted. But “no definition [of plain error] will fit every case.” People v. Barker, 180 Colo. 28, 32, 501 P.2d 1041, 1042 (1972); People v. Cook, 197 P.3d 269, 276 (Colo.App.2008). The underlying principle, “a reasonable possibility that ......
  • Callis v. People, No. 83SC110
    • United States
    • Colorado Supreme Court of Colorado
    • December 10, 1984
    ...affected the fairness of the trial proceedings. Quintana, 665 P.2d 605; see also Taylor, 197 Colo. 161, 591 P.2d 1017; People v. Barker, 180 Colo. 28, 501 P.2d 1041 Our review of the record in this case provides us with utmost assurance that the trial court's failure to excise from the defe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT