People v. Jacobs
| Decision Date | 24 July 1972 |
| Docket Number | No. 25084,25084 |
| Citation | 499 P.2d 615,179 Colo. 182 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John James JACOBS, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Randolph M. Karsh, Deputy State Public Defender, for defendant-appellant.
Defendant, John James Jacobs, appeals from his conviction for burglary and theft. He will hereinafter be referred to by name or as defendant.
On the evening of June 21, 1969, several hundred suits of clothing were stolen from the premises of Burling's, Incorporated, a clothing store located in Pueblo, Colorado. On June 30, 1969, defendant, a Denver resident who frequently visited Pueblo, and several others were indicted for burglary of the clothing store with the intent to commit theft, theft, and conspiracy with intent to commit second degree burglary and theft. Following a granting of severance, defendant was tried by a jury on January 23, 1970, which returned a verdict of guilty on all three counts. A Motion for New Trial was filed on February 3, 1970, and on March 2, 1970, the trial court dismissed the conspiracy count for lack of sufficient evidence, otherwise denying the motion for new trial.
Defendant's only contentions on appeal relate to several statements made by the prosecution during the People's opening statement at trial. Initially, in attempting to establish the presence of a conspiracy prior to the burglary, the prosecutor stated that:
'What we will try to prove in this case is simply that on or about the afternoon of June 21, 1969, that five colored persons were noted in a light colored vehicle near the premises of Burling's . . . later that night, a break-in was noticed by another witness at Burling's. . . .'
A witness at the trial testified to the substance of this statement, but was unable to identify the occupants of the car. A motion to strike the testimony was granted by the trial court at the close of the People's case.
The other comment by the prosecutor in his opening statement which defendant now contests is as follows:
'We will try to prove that there was (sic) statements made by the defendant to another in Denver at a later date stating that he, the defendant, had made a hit in Pueblo the week before, placing the Defendant in Pueblo that night. . . .'
A witness subsequently called by the prosecution testified regarding a conversation with defendant in Denver a week following the burglary during which defendant offered to sell the witness a suit; upon further questioning, however, the witness refused to elaborate on the conversation. The witness did not testify to the 'hit' alluded to in opening statement. After the close of the People's case, prosecution asked that the court reopen their case to allow further testimony of the recalcitrant witness on the theory that the witness, proviously in fear of the defendant, would now expand his earlier remarks. The court denied the motion.
The defendant's objections to the statements of the prosecution during opening statement were first made on the motion for a new trial; no such objection was entered when the statements were first made, at the close of the People's case, nor at the close of all the evidence. Defendant contends that the unproven remarks of the prosecution during opening statement were so prejudicial to defendant's cause as to require reversal and new trial. We do not agree.
The People point out that a defendant's failure to object during the course of the trial to statements made by the prosecutor has consistently been construed by this Court as a waiver to any further objection as a matter of right on appeal, Bizup v. People, 150 Colo. 214, 371 P.2d 786; Gray v. People, 139 Colo. 583, 342 P.2d 627; Webb v. People, 97 Colo. 262, 49 P.2d 381. However, we do not consider these cases to be applicable here.
In the case at bar, strict contemporaneous objection by defense counsel following the opening statement...
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Harris v. People
...691, 697 (Colo.1984); Ferrell, 200 Colo. at 131, 613 P.2d at 326; Elliston, 181 Colo. at 123, 508 P.2d at 381; People v. Jacobs, 179 Colo. 182, 187, 499 P.2d 615, 618 (1972). A trial court must determine whether the prosecutorial misconduct in all probability influenced the jury's result or......
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Leonardo v. People
...Moody, 676 P.2d 691, 697 (Colo.1984) (emphasis added); accord People v. Gutierrez, 622 P.2d 547, 554 (Colo.1981); People v. Jacobs, 179 Colo. 182, 187, 499 P.2d 615, 618 (1972). This presumption, however, is rebuttable. Where, as here, a jury affirmatively indicates that it has a fundamenta......
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People v. Melanson
...ordinarily constitute reversible error if there has been an affirmative showing of bad faith and manifest prejudice. People v. Jacobs, 179 Colo. 182, 499 P.2d 615 (1972). Here, the prosecutor indicated during his opening statement that two inmates who had been incarcerated with defendant in......
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People v. Bergstrom
...We will not assume that the jurors ignored the court's instruction to disregard the comments by the district attorney, People v. Jacobs, 179 Colo. 182, 499 P.2d 615, and under these circumstances we do not find that the court abused its discretion in denying the motion for mistrial. For a s......
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THE COLORADO APPELLATE RULES
...to object during trial to statements made by prosecutor, he waives further objection as matter of right on appeal. People v. Jacobs, 179 Colo. 182, 499 P.2d 615 (1972). Absent defect affecting substantial right. The failure to timely object will preclude an appellate from reversing on the g......
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Rule 1 SCOPE OF RULES.
...to object during trial to statements made by prosecutor, he waives further objection as matter of right on appeal. People v. Jacobs, 179 Colo. 182, 499 P.2d 615 (1972). Absent defect affecting substantial right. The failure to timely object will preclude an appellate from reversing on the g......