People v. Nunez, No. 89CA0958

Docket NºNo. 89CA0958
Citation824 P.2d 54
Case DateAugust 01, 1991
CourtCourt of Appeals of Colorado

Page 54

824 P.2d 54
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Marcus A. NUNEZ, Defendant-Appellant.
No. 89CA0958.
Colorado Court of Appeals,
Div. I.
Aug. 1, 1991.
Rehearing Denied Aug. 29, 1991.
Certiorari Granted Jan. 27, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., A. William Bonner, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Springer & Steinberg, P.C., Harvey A. Steinberg, Denver, for defendant-appellant.

Opinion by Chief Judge STERNBERG.

Defendant, Marcus A. Nunez, appeals judgments of conviction entered following jury verdicts finding him guilty of aggravated robbery and mandatory sentence--violent crime. We reverse and remand.

At the trial, defendant relied on an alibi defense. He testified that at the time of the robbery, he was attending a party several miles away. His testimony was corroborated by the testimony of four friends who also attended the party.

Defendant tendered a "theory of defense" instruction, which stated:

Page 55

"Evidence has been introduced tending to establish an alibi which amounts to a contention that at the very time of the commission of the crime, Marcus Nunez was at another place under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed.

If, after consideration of all the evidence in this case, you have a reasonable doubt whether the Defendant was present at the time and place the alleged offense was committed, you must acquit him.

The burden is upon the People to prove each and every element of the charge explained in the Instruction No. _______ beyond a reasonable doubt."

Without stating any reason, the trial court refused to give this instruction. Defendant contends that this was error. Although we conclude that the trial court properly refused to give the particular instruction tendered, we nevertheless agree with defendant that the court committed reversible error in not cooperating with defense counsel to prepare a proper instruction.

In People v. Huckleberry, 768 P.2d 1235 (Colo.1989), the supreme court held that an alibi defense is not an affirmative defense, so as to place on the People the burden of proof to rebut it and that, therefore, the trial court did not err by refusing a theory of the case instruction which treated the defense of alibi in such a manner.

The instruction tendered by defendant here follows almost verbatim the affirmative defense instruction which was properly refused in...

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1 practice notes
  • People v. Nunez, No. 91SC576
    • United States
    • Colorado Supreme Court of Colorado
    • November 9, 1992
    ...Harvey A. Steinberg, Denver, for respondent. Justice ERICKSON delivered the Opinion of the Court. The court of appeals in People v. Nunez, 824 P.2d 54 (Colo.App.1991), reversed the judgments of conviction and the sentences imposed on Marcus A. Nunez for aggravated robbery and crime of viole......
1 cases
  • People v. Nunez, No. 91SC576
    • United States
    • Colorado Supreme Court of Colorado
    • November 9, 1992
    ...Harvey A. Steinberg, Denver, for respondent. Justice ERICKSON delivered the Opinion of the Court. The court of appeals in People v. Nunez, 824 P.2d 54 (Colo.App.1991), reversed the judgments of conviction and the sentences imposed on Marcus A. Nunez for aggravated robbery and crime of viole......

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