Stoudt v. People
| Decision Date | 05 April 1965 |
| Docket Number | No. 21087,21087 |
| Citation | 400 P.2d 670,156 Colo. 568 |
| Parties | Mary Ellen STOUDT, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Leo W. Rector, Jerry Alan Donley, Colorado Springs, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Sp. Asst. Atty. Gen., Denver, for defendant in error.
By direct information Mary Ellen Stoudt was charged with the murder of Jerry Quinton Ives. To this charge she pled not guilty and not guilty by reason of insanity at the time of the alleged commission of the crime. Upon trial a jury of her peers determined that the defendant was sane at the time of the offense and then adjudged her guilty of murder in the second degree. Thereafter Stoudt was duly sentenced to a term of from fifteen to twenty-five years in the State Penitentiary.
By writ of error Stoudt now seeks a reversal of her conviction and sentence and as grounds therefor contends that the trial court erred in the following particulars:
1. in permitting the 'late endorsement' of several witnesses by the district attorney and in thereafter overruling her request for a continuance;
2. in refusing to declare a mistrial because of improper voir dire questioning by the district attorney of certain prospective jurors;
3. in allowing the pathologist to express his opinion as to the distance from which the gun was fired at Ives;
4. in allowing the witness Kirkbride to testify as to the 'connection' between certain bullet holes in a cupboard located in the room where Ives was killed;
5. in refusing to require the witness Murphy to produce certain 'notes' which 'he had made relative to his investigation and had used to refresh his memory' prior to testifying; and
6. in permitting the People to call a psychiatrist as a rebuttal witness and in thereafter refusing to allow the psychiatrist to testify as to a conversation he had with the defendant concerning an unsuccessful paternity suit which she previously brought against Ives.
In our view each of these alleged 'errors' on the part of the trial court is without merit. In fact, our review of the record convinces us that this was a trial singularly free from error, even error of the technical or non-prejudicial variety. Let us then proceed to consider the several assignments of error urged by Stoudt.
Some five days before the commencement of the trial, the trial court over objection permitted the district attorney to endorse nine persons as additional witnesses for the People. The defendant then moved for a continuance of the trial proper, and this request was denied. Of the nine persons thus endorsed, the People called only four in their case-in-chief; the defendant calling one as her own witness, and one thereafter being called as a rebuttal witness for the State. The remaining three persons were not called by either side. There is nothing in the record to indicate that any prejudice resulted from this interlocutory order of the trial court. There is no claim that the defendant was in any way 'surprised' by any of these witnesses or their testimony. The matter of a trial court permitting the district attorney to endorse witnesses on the date of trial, or very shortly prior thereto, is one which has been uniformly held to rest within the sound discretion of the trial court and its ruling in connection therewith will not be a basis for reversal unless there be a clear showing of an abuse of discretion. See Baker v. People, 72 Colo. 207, 210 P. 323; and Gorum v. People, 137 Colo. 1, 320 P.2d 340.
In the instant case Stoudt had some five days to interview these newly endorsed witnesses, if she felt any need therefor. This at once distinguishes the present controversy from Kloberdanz v. People, 95 Colo. 30, 31 P.2d 1111, where the late endorsement was permitted just as the trial proper was about to commence. Upon trial of the instant case, when the district attorney proceeded to call four of these nine persons as witnesses, there was no objection thereto and no indication that the defendant was in anywise 'surprised' by their testimony. Under all these circumstances, it is quite clear that the order of the trial court granting the motion of the district attorney to endorse these persons as witnesses was proper and therefore such is insufficient to warrant or require a reversal of the judgment and sentence.
On voir dire examination of the jury panel the district attorney inquired of two jurors as to whether evidence of 'indiscriminate sex relations' would in any wise influence the particular juror in his deliberation, and each such juror answered in the negative. When the same question was propounded to a third prospective juror, the defendant objected and demanded a mistrial. The trial court denied the motion for a mistrial, ordered the district attorney to stop propounding the question to other jurors because the question could be 'misinterpreted,' but declined to instruct the jurors that they should disregard the purport of the question. It is urged that this is error of such magnitude as to require reversal of the judgment and sentence.
In Jones v. People, 23 Colo. 276, 47 P. 275, prospective jurors were asked, over objection, if the fact that the wife of the defendant had been intimate with the deceased would in any wise influence their verdict. Upen review we held that this question was 'proper.' In the instant case there was no impropriety in asking this question as to whether evidence of indiscriminate sex relations would interfere in the juror's deliberations, particularly in view of the evidence which subsequently unfolded during the course of the trial proper. From the record we are unable to determine whether the 'indiscriminate sex relations' referred to by the district attorney were actions by the defendant, the victim, or of certain of the witnesses who testified upon trial. In any event, the trial court out of an abundance of caution order the district attorney to stop this line of questioning because of possible 'misinterpretation.' Under these circumstances the trial court did not thereafter 'err' in refusing to declare a mistrial or in declining to draw further attention to the entire matter by instructing the jurors to disregard any inference, whatever it might be, which could be drawn from the question thus propounded.
Nor did the trial court err in permitting Dr. Urich, a pathologist who was also the coroner for El Paso County, to express his opinion that the lethal weapon was discharged some two to three feet from the person of Jerry Ives. This witness testified that as the coroner it was a part of his official duty to determine the 'distance from which bullets have been fired at a body'; that as coroner he was called in on 'all unattended or violent deaths' in El Paso County, and that based on 'the appearance of the bullet wound, the powder marks around the wound and on the clothing; it is my opinion that the gun was held not further than thirty-six inches and probably in the neighborhood of twenty-four inches.' In our view there was a sufficient showing to entitle this witness to testify in the manner indicated, the weight to be given his...
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