People v. Simmons, 25420
| Decision Date | 20 August 1973 |
| Docket Number | No. 25420,25420 |
| Citation | 513 P.2d 193,182 Colo. 350 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George N. SIMMONS, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Sara Duncan, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Deputy Colo. State Public Defender, Dorian E. Welch, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, George N. Simmons, appeals from his conviction of two counts of vehicular homicide. He will be referred to as defendant.
On April 23, 1971, Denver and Aurora police cooperated in a 'stake out' of a stolen car which had been found at a parking lot of an Aurora bowling alley. At approximately 7:45 p.m., defendant and a passenger drove a 1969 Plymouth into the parking lot. Defendant circled the lot twice and came to a stop next to the stolen car. The lights of the Plymouth were turned off, and the passenger got out and approached the stolen car.
Although the sequence of events is somewhat unclear from the record, apparently two plainclothes policemen jumped out of their unmarked van holding shotguns. One of the officers yelled, 'police officers; stop!' The passenger told defendant to 'make it.' And as defendant sped out of the parking lot, two shotgun blasts were fired at the fleeing car.
Two other plainclothes police officers in an unmarked car immediately pursued the Plymouth west on Montview Boulevard. Testimony indicates that the Plymouth darted in and out of traffic narrowly missing two cars. Its speed increased to an estimated 80 or 90 miles per hour. One block east of Syracuse, the Plymouth stopped accelerating, and its brake lights came on for a moment. It then accelerated again going to the wrong side of the road to avoid cars which were stopped for a red traffic light at the intersection of Montview and Syracuse. As defendant entered the intersection on the wrong side of the street, he apparently applied his brake only moments before he smashed broadside into a station wagon traveling south on Syracuse. Two people in the station wagon were killed. Defendant was found slumped across the seat with a holster on his belt and a loaded revolver under his hand on the floor.
Defendant was tried by a jury, which returned a verdict of guilty on both counts of vehicular homicide. Defendant's motion for new trial was denied by the trial court.
On appeal, defendant contends that the trial court erred (1) in submitting an erroneous instruction to the jury on the presumption of innocence, (2) in refusing to allow defense counsel to cross-examine a police officer concerning his knowledge of a potential civil suit against the City and County of Denver arising out of the accident, and (3) in refusing to allow the testimony of an attorney to the effect that he had served notice on the City that such a suit might be filed. We do not find merit in defendant's contentions and therefore affirm the judgment of the trial court.
Defendant's first contention is that the trial court committed reversible error in submitting to the jury an erroneous instruction on the presumption of innocence. Although this Court disapproved an identical instruction in Martinez v. People, 172 Colo. 82, 470 P.2d 26, we pointed out in People v. Barker, Colo., 501 P.2d 1041, we would ordinarily reverse on this ground only if the defendant objected to the instruction in accordance with Crim.P. 30. In the instant case, as in Barker where we also refused to reverse, no objection was made, and the error was not specified in the motion for new trial.
Defendant's second contention relates to the cross-examination of Officer Berry, a traffic investigator for the Denver Police Department. He arrived at the accident scene shortly after it happened to conduct the accident investigation. On direct examination he was allowed to testify to his observation of the physical evidence on the accident scene; however, he gave no opinion as to the cause of the accident. He testified that he prepared a diagram indicating the distance the vehicles travelled from point of impact, that the cars left heavy skid marks on the payment, that the traffic signal was functioning properly, and that a speed limit of 35 miles per hour was posted on Montview Boulevard east of the Syracuse intersection.
He also testified that when he interrogated the defendant at the hospital, the defendant told him that he was heading toward Denver on Montview and he last remembered headlights coming at him, but he could not remember where they were coming from. On cross-examination, defense counsel asked, 'Officer Berry, do you have personal knowledge of the fact--have you been placed upon notice that a lawsuit may be filed against--'
At this point, the prosecutor objected and asked for an offer of proof. Defense counsel told the court that he hoped to show that the witness...
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...probing the witness' bias toward the defendant and committed no error in that regard. E. g., People v. Taylor, supra; People v. Simmons, 182 Colo. 350, 513 P.2d 193 (1973); People v. Couch, 179 Colo. 324, 500 P.2d 967 The defendant's last claim in connection with the cross-examination of Do......
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Cross-examination in Criminal Cases
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