People v. Motley, 24810

• Decision Date: 26 June 1972
• Docket Number: No. 24810,24810
• Citation: 498 P.2d 339,179 Colo. 77
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles Lucus MOTLEY, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 339

498 P.2d 339

179 Colo. 77

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles Lucus MOTLEY, Defendant-Appellant.

No. 24810.

Supreme Court of Colorado, In Department.

June 26, 1972.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Richard C. Webster, James S. Bertagnolli, Deputy State Public Defenders, Denver, for plaintiff-appellee.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for defendant-appellant.

PRINGLE, Chief Justice.

Charles Lucus Motley, hereinafter referred to as appellant, or by name, appeals from his conviction for aggravated robbery. The sole issue to be decided here is whether certain remarks by the prosecutor in his closing rebuttal argument to the jury were prejudicial and improper to an extent requiring a new trial. We hold that the remarks of the prosecutor were not of a nature so prejudicial as to require a new trial, and therefore affirm the judgment of the trial court.

So that the decision of this court may be viewed in a proper perspective, we here set forth certain facts out of which the appeal arose.

One Presler and his wife, who operate a small grocery store in Colorado Springs, were robbed by two men, the taller of whom was armed. From several Polaroid color photographs, Mrs. Presler was able to identify appellant as the shorter of the two robbers. At appellant's trial, Mrs. Presler again identified appellant as the shorter of the two men and indicated that at the time of the robbery his hair was thicker and longer than usual for a Negro.

A young lady who had entered the store while the robbery was in progress also testified that she was positive appellant was the shorter of the two robbers. This witness testified that at the time of the robbery, while appellant's hair was longer than that of his confederate, it 'was short.' Mr. Presler was then called to testify and identified appellant as the shorter of the two. On the question of hair length, he testified appellant's hair was longer at the time of the robbery than at the time of trial.

On appellant's case, Motley testified that his hair could not have been longer at the time of the robbery than at the time of trial because he was in the United States Army at the time of the robbery and had had his hair cut to Army regulation only five days earlier. Appellant's infantry platoon leader, Lieutenant James Wolfe, also testified that appellant's hair was longer at the time of trial than during the month in which the robbery occurred.

In closing argument defense counsel argued that, in the face of the defense testimony on the issue of the length of Motley's hair at the time of the robbery, doubt was created as to whether Motley was one of the robbers. The district attorney countered this argument in his rebuttal by the following statement:

'Now, as far as the hair is concerned, it is not uncommon with G.I.s with short haircuts to be wearing wigs. You probably don't know whether or not Mr. Motley . . .'

At that point defense counsel objected. The objection was overruled but the district attorney was warned against following that line of argument.

It is fundamental in Colorado that the scope of final argument rests in the sound discretion of the trial court. A trial court, ruling on questions regarding the scope of closing arguments, is exercising a discretion which will not be disturbed by an appellate...