People v. Pesis
| Decision Date | 16 June 1975 |
| Docket Number | No. 26088,26088 |
| Citation | 536 P.2d 824,189 Colo. 52 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dave James PESIS, 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.
Hoyman, Maguire, Davies & Nanney, B. Maguire, Denver, for defendant-appellant.
The defendant was convicted of dispensing a dangerous drug under 1971 Perm.Supp.C.R.S.1963, 48--8--2. 1 Defendant asserts that he was deprived of his right to a fair trial because of prejudicial comments by the district attorney during closing arguments, and because of ineffective assistance of trial counsel. 2 We are unable to agree with these contentions, and affirm.
The prosecution called several witnesses. Douglas Rogers testified that, on May 6, 1972, Don Howard came by his house in Wray, Colorado, at about 1:30 or 2:00 in the afternoon; that they took a ride in the car, during which they talked about obtaining some 'dope and stuff'; and that he indicated to Howard that he wanted to buy some. He then testified that the defendant and a companion followed them in another car to a junkyard nearby, where a purchase of three tabs of LSD was made for ten dollars. Rogers stated that the defendant received the money and handed the LSD to Howard, who then gave it to Rogers. Rogers testified that at about 2:00 the next morning, after taking one of the tabs, he was arrested for assault, drunken driving, and careless driving; and that he was taken to the hospital, and then to jail.
The People called the sheriff of Yuma County, who testified that he saw the defendant and his car in Wray around 1:00 p.m. on May 6, 1972 at an auction of property belonging to an estate.
The defendant presented an alibi defense. The defendant's father testified that he was with the defendant in Englewood, Colorado shortly after 2:00 p.m. on May 6, when the defendant left to go to Wray, about 180 miles away.
Don Howard's father testified that his son was working all day on a farm outside of Wray; and that he had taken him there at 8:00 a.m. and picked him up from there at approximately 5:00 that afternoon. The owner of the farm also testified that Don Howard worked for him on May 6, 1972, and that he had worked with him all day, and had eaten with him during the day. Don Howard testified to the same facts. The defendant testified that he had been in Englewood, that he left about 2:15 or 2:30 that afternoon, and that he had arrived in Wray at about 6:00 p.m.
The district attorney did make some inaccurate or improper statements during closing argument. With the one exception noted below there were no contemporaneous objections. The prosecutor stated inaccurately:
'He (Pesis) got up at 1:00 or 1:30, Don Howard came to his house, they rode around awhile and eventually ended up out here on the hill, exchanged for the LSD, the three tabs, and left.'
The prosecutor noted that the defendant's father had testified that he owned a furniture and antique store. He then stated that the defendant must be interested in the same work, and that it was natural that he would be attending the estate sale where the sheriff had said he had observed him. There is no evidence in the record of such an interest on the part of the defendant.
The prosecutor further stated that the defendant had purchased his automobile only that morning. The evidence was the defendant's testimony to the effect that he had purchased it on an earlier date, and that on May 6th he was trying to obtain a title to the car.
The prosecutor also made a statement to the effect that, if the jury believed the argument made by defense counsel, then the jury would also believe that the law enforcement officers in Yuma County go out and arrest people 'for the hell of it.' Here defense counsel objected. After the objection was overruled, the court then again mentioned that arguments are not testimony.
The statements of the district attorney were ill-advised. We rule, however, that they were not sufficiently material or misleading to constitute reversible error. The jury was fully instructed--and even was reminded by the district attorney in closing argument--that arguments of counsel are not evidence. It is presumed, absent a clear showing to the contrary, that the jury understood and heeded this instruction. People v. Gilkey, 181 Colo. 103, 507 P.2d 855 (1973); People v. Motley, 179 Colo. 77, 498 P.2d 339 (1972).
As this court stated in People v. Motley, 179 Colo. 77, 498 P.2d 339 (1972),
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People v. Silva
...to constitute a farce, mockery or sham." Martinez v. People, 173 Colo. 515, 519-20, 480 P.2d 843, 845 (1971); see also People v. Pesis, 189 Colo. 52, 536 P.2d 824 (1975). Several circuits, including the Tenth Circuit, abandoned the "sham, farce and mockery" test, and adopted the "reasonable......
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People v. Moseley
...of the evidence. Absent a contrary showing, we must presume that the jury understood and heeded the court's instruction. People v. Pesis, Colo., 536 P.2d 824; People v. Becker, 187 Colo. 344, 531 P.2d 386. Particularly here, where the evidence clearly supported the jury's verdict and appell......
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People v. Moody
...by an appellate court in the absence of a gross abuse of discretion resulting in prejudice and a denial of justice. People v. Pesis, 189 Colo. 52, 536 P.2d 824 (1975); People v. Motley, 179 Colo. 77, 498 P.2d 339 (1972). The trial court instructed the jury that closing argument is not evide......
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People v. Johnson, 80SA123
...mean that the defendant is constitutionally guaranteed such assistance as will result in his acquittal at trial. See People v. Pesis, 189 Colo. 52, 536 P.2d 824 (1975); Steward v. People, 179 Colo. 31, 498 P.2d 933 Johnson also argues that he is entitled to a reduction of sentence pursuant ......