People v. Barker, 26273
| Decision Date | 14 July 1975 |
| Docket Number | No. 26273,26273 |
| Citation | 538 P.2d 109,189 Colo. 148 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raymond Paul BARKER, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Patricia W. Robb, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Roberts & Kengle, Harry Kengle, Florence, for defendant-appellant.
On January 31, 1972, defendant Barker escaped from the Colorado State Penitentiary. He was subsequently arrested in California and returned to Colorado where he was tried and convicted of the crime of escape, C.R.S. 1963, 40--7--53. For the reasons set forth herein, we affirm the judgment of conviction.
Central to the defendant's defense is his contention that he committed the escape under duress. He testified that in the first part of January of 1972, he witnessed a stabbing incident and was thereafter labeled a 'snitch' by other inmates, and was threatened by these inmates. He testified that he thrice tried to convey to the warden the fact that he was threatened, but received no response to his written communications. He now contends that this testimony, along with the testimony of two other witnesses, established the defense of duress, and the trial court should have directed a verdict of acquittal. We find no merit in this argument.
Whether or not defendant's theory of the case constituted a viable defense to the crime of escape is beyond the pale of our immediate concern; nonetheless, this theory of duress as an excuse was fully presented to the jury by the trial court in its instructions. The jury, by its verdict, found the facts otherwise than as contended by the defendant and his witnesses.
It is axiomatic that the jury is the sole judge of the credibility of the witnesses. As pointed out in Gonzales v. People, 128 Colo. 522, 264 P.2d 508:
'The jury determines what witnesses are worthy of credit and gives credit accordingly, and it is not obligated to accept as true the testimony of any witness, notwithstanding such witness has not been contradicted or impeached.' 264 P.2d at 510.
Since there is an overwhelming amount of evidence in the record that supports the jury's verdict, that verdict cannot be set aside on review. See Dodge v. People, 168 Colo. 531, 452 P.2d 759.
Barker also contends that he was denied a fair trial because the prosecution sought to impeach a defense witness with a prejudicial question. This contention is based on the prosecution's attempted impeachment of defense witness Kenner by asking the next defense witness, Tanksley, the following questions:
Q. What I'm getting at, did you ever leave the penitentiary together?
A. I left the...
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...200 P.3d 363, 367 (Colo.2009) (“[T]he jury is the sole judge of the credibility of the witnesses.”) (quoting People v. Barker, 189 Colo. 148, 149, 538 P.2d 109, 110 (1975)); cf. McBride, 228 P.3d at 226 (reversing conviction where prosecution offered no direct evidence concerning one elemen......
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...the judge, to decide which witnesses and even which version of the witnesses' testimony is to be believed. See People v. Barker , 189 Colo. 148, 149, 538 P.2d 109, 110 (1975) ("It is axiomatic that the jury is the sole judge of the credibility of the witnesses."); see also People v. Ramirez......
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