People v. Flysaway, 88CA1899
| Decision Date | 30 August 1990 |
| Docket Number | No. 88CA1899,88CA1899 |
| Citation | 807 P.2d 1179 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward FLYSAWAY, Defendant-Appellant. . V |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Timothy R. Twining, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Susan Baker, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge VAN CISE *.
Defendant, Edward Flysaway, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child and aggravated incest. We affirm.
I.
Defendant contends that the trial court erred in failing to give a cautionary jury instruction contemporaneously with the admission of the child victim's hearsay statements. We disagree.
When a child victim's hearsay statement is admitted under § 13-25-129(1), C.R.S. (1987 Repl.Vol. 6A), the trial court must give a cautionary jury instruction on credibility. And, while the statute itself contains no express requirement therefor, it has been construed to require the court to give the instruction contemporaneously with the admission of the hearsay evidence and again at the conclusion of the case. People v. McClure, 779 P.2d 864 (Colo.1989); People v. Mathes, 703 P.2d 608 (Colo.App.1985). In both of these cases, the trial court did not give the statutorily required cautionary instruction either at the time the evidence was admitted or at the conclusion of the case. It gave only the general instruction on witness credibility.
Here, the trial court gave the instruction only at the conclusion of the case. However, because defendant did not request a contemporaneous instruction, our scope of review is limited to plain error. See Crim.P. 52(b). Plain error exists only if the error so undermines the fundamental fairness of the trial that it casts serious doubt on the reliability of the conviction. Wilson v. People, 743 P.2d 415 (Colo.1987).
Complete omission of the cautionary instruction required by § 13-25-129 may be plain error. See People v. McClure, supra. Cf. People v. Wood, 743 P.2d 422 (Colo.1987). Failure to give the instruction contemporaneously with the testimony of a witness, however, may not be plain error if the instruction is given at other times. See People v. Diefenderfer, 784 P.2d 741 (Colo.1989) ().
We conclude that here the trial court's failure to give a contemporaneous instruction was not plain error. The instruction was given at the close of the case, and it is presumed that the jury followed the instructions given. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).
II.
Defendant next contends that the trial court abused its discretion in denying a continuance requested as a discovery sanction under Crim.P. 16 for the prosecution's untimely disclosure of potentially exculpatory evidence one day before trial. We disagree.
This argument is founded on a letter defendant wrote to his estranged wife in which he listed several incidents in which the victim had made allegedly false accusations of sexual assault by defendant. The prosecutor received a copy of that letter a day before commencement of trial and, as required by Crim.P. 16, delivered a copy to defense counsel that same day.
Under the circumstances of this case, defendant's own letter could not have been competent defense evidence, and the contents, if true, were already known by the author defendant. There was no showing of a discovery violation or of any prejudice to defendant in the denial of a continuance.
Judgment affirmed.
To continue reading
Request your trial
-
People v. Jones, 90CA1997
...v. Miller, 821 P.2d 881 (Colo.App.1991) (non-instructed witness' testimony corroborated that of the victim). See also People v. Flysaway, 807 P.2d 1179 (Colo.App.1990). Upon thorough review of the foregoing cases, we conclude that the facts here, while certainly distinguishable in a number ......
-
People v. Drake, 90CA0756
...the fundamental fairness of the trial itself as to cause serious doubt as to the reliability of the conviction. People v. Flysaway, 807 P.2d 1179 (Colo.App.1990). Public policy and convenience prohibit judges from being called as witnesses to state the grounds upon which they decided former......
-
People v. Miller, 89CA0949
...(Colo.1987), that rule cannot apply to the circumstances of the expert testimony by the psychotherapist. See People v. Flysaway, 807 P.2d 1179 (Colo.App.1990) (Plank, J. dissenting). It matters not that the hearsay admitted through the psychotherapist amounted to little more than a few sent......
-
People v. Cowan
...the out-of-court statements did not cause serious doubt as to the reliability of the judgment of conviction. See also People v. Flysaway, 807 P.2d 1179 (Colo.App.1990). While there may be cases in which an instruction in the final charge is sufficient to cure the prior default in giving a c......
-
ARTICLE 25
...assault on a child, so long as such instruction was given as a jury instruction at the conclusion of the evidence. People v. Flysaway, 807 P.2d 1179 (Colo. App. 1990). To find plain error, the court must conclude, after reviewing the record as a whole, that trial court's failure to give con......
-
ARTICLE 25 EVIDENCE GENERAL PROVISIONS
...assault on a child, so long as such instruction was given as a jury instruction at the conclusion of the evidence. People v. Flysaway, 807 P.2d 1179 (Colo. App. 1990). To find plain error, the court must conclude, after reviewing the record as a whole, that trial court's failure to give con......
-
ARTICLE 25 EVIDENCE GENERAL PROVISIONS
...assault on a child, so long as such instruction was given as a jury instruction at the conclusion of the evidence. People v. Flysaway, 807 P.2d 1179 (Colo. App. 1990). To find plain error, the court must conclude, after reviewing the record as a whole, that trial court's failure to give con......
-
Rule 52 FINDINGS BY THE COURT.
...assault on a child, so long as such instruction was given as a jury instruction at the conclusion of the evidence. People v. Flysaway, 807 P.2d 1179 (Colo. App. 1990). An appellate court's conclusion from the evidence might differ from that of the trial court. In a trial to the court, the s......