Valley v. People, No. 22445

Docket NºNo. 22445
Citation165 Colo. 555, 441 P.2d 14
Case DateMay 13, 1968
CourtSupreme Court of Colorado

Page 14

441 P.2d 14
165 Colo. 555
Dennis M. VALLEY, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 22445.
Supreme Court of Colorado, En Banc.
May 13, 1968.
Rehearing Denied June 10, 1968.

[165 Colo. 557] John F. Mueller, Albert A. Norbont. Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., for defendant in error.

McWILLIAMS, Justice.

Dennis Valley and Michael Oliver were jointly charged in a four count information with larceny, receiving stolen goods, and conspiracy to commit each of the aforesaid crimes. Trial by jury culminated in verdicts acquitting Oliver on all counts. Valley, however, though acquitted of the

Page 15

crimes of larceny and conspiracy to commit larceny, was convicted of receiving stolen goods of a value of $1,800 and conspiracy to commit the receiving of stolen goods.

Thereafter, upon motion, the trial court set aside the verdict of the jury as it related to the count charging [165 Colo. 558] conspiracy to commit the crime of receiving stolen goods. However, as to the count charging the crime of receiving stolen goods, the trial court denied Valley's motion for a new trial and sentenced him to a term of from three to five years in the State Penitentiary. By writ of error Valley now seeks reversal of the judgment thus entered against him.

Valley argues that the trial court committed error in the following particulars: (1) in refusing to declare a mistrial when a witness for the People, who was an investigator in the sheriff's office, 'volunteered' upon direct examination that he presented a number of 'mug shots which are pictures taken in the Adams County jail when a person is booked into jail' to a third party who identified the pictures of both Valley and Oliver as photos of the persons from whom he had purchased a part of the stolen property; and (2) in attempting to 'clarify' the instruction on circumstantial evidence which had been theretofore given the jury, such 'clarification' being orally given the jury upon its request after it had been deliberating for several hours. In our view neither contention is such as to dictate a reversal of this case, and the judgment and sentence should therefore be affirmed.

Was the passing reference of the sheriff's investigator to mug shots of such serious nature as to make mandatory the declaration of a mistrial? We hold that it was not. In this regard it should be noted that the trial court, out of the presence of the jury, volunteered to strike the answer thus given and instruct the jury to disregard the same. Counsel for Valley flatly refused this offer, however, and insisted that the trial court declare a mistrial.

Declaring a mistrial is a rather drastic measure and it is only natural for a trial court to first attempt to ascertain whether the error could be remedied in a somewhat less disruptive fashion. Here, the statement [165 Colo. 559] objected to by counsel did not reveal that Valley, or Oliver for that matter, had any prior felony record, but only that on some prior occasion their pictures had been taken when they were 'booked into jail.' In our view this matter could have been adequately handled by striking the answer and instructing the jury to disregard the answer. But counsel did not desire that the matter be handled in this manner, and he demanded a mistrial, nothing less.

Whether a mistrial is to be granted in a given case is a matter lying within the sound discretion of the trial court, and the exercise of that discretion will not be overturned by us unless there has been a clear abuse of that discretion. See Balltrip v. People, 157 Colo. 108, 401 P.2d 259...

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19 practice notes
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...trial court, “[a]re both sides comfortable if the court just refers to it as the incident,” Tillery did not object. See Valley v. People, 165 Colo. 555, 559-62, 441 P.2d 14, 16 (1968) (“failure of counsel to object to the clarifying comments of the trial court, coupled with the fact that co......
  • People v. Dunlap, No. 01CA1082.
    • United States
    • Colorado Supreme Court of Colorado
    • November 7, 2005
    ...to constitute a "misstatement of the law." Boothe v. People, 814 P.2d 372, 378 (Colo.1991)(Lohr, J., concurring); see Valley v. People, 165 Colo. 555, 561, 441 P.2d 14, 16 Here, as discussed above, the jury sent out a three-part question, which the court discussed with the prosecution and d......
  • People v. Rediger, Court of Appeals No. 12CA1386
    • United States
    • Colorado Court of Appeals of Colorado
    • March 12, 2015
    ...has also been found when defense counsel chose not to object, despite an express invitation by the court. See, e.g., Valley v. People, 165 Colo. 555, 561, 441 P.2d 14, 16 (1968) ( "[F]ailure of counsel to object to the clarifying comments of the 411 P.3d 916trial court, coupled with the fac......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 1, 2009
    ...trial court, "[a]re both sides comfortable if the court just refers to it as the incident," Tillery did not object. See Valley v. People, 165 Colo. 555, 559-62, 441 P.2d 14, 16 (1968) ("failure of counsel to object to the clarifying comments of the trial court, coupled with the fact that co......
  • Request a trial to view additional results
19 cases
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...trial court, “[a]re both sides comfortable if the court just refers to it as the incident,” Tillery did not object. See Valley v. People, 165 Colo. 555, 559-62, 441 P.2d 14, 16 (1968) (“failure of counsel to object to the clarifying comments of the trial court, coupled with the fact that co......
  • People v. Dunlap, No. 01CA1082.
    • United States
    • Colorado Supreme Court of Colorado
    • November 7, 2005
    ...a "misstatement of the law." Boothe v. People, 814 P.2d 372, 378 (Colo.1991)(Lohr, J., concurring); see Valley v. People, 165 Colo. 555, 561, 441 P.2d 14, 16 Here, as discussed above, the jury sent out a three-part question, which the court discussed with the prosecution and defen......
  • People v. Rediger, Court of Appeals No. 12CA1386
    • United States
    • Colorado Court of Appeals of Colorado
    • March 12, 2015
    ...has also been found when defense counsel chose not to object, despite an express invitation by the court. See, e.g., Valley v. People, 165 Colo. 555, 561, 441 P.2d 14, 16 (1968) ( "[F]ailure of counsel to object to the clarifying comments of the 411 P.3d 916trial court, coupled with th......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 1, 2009
    ..."[a]re both sides comfortable if the court just refers to it as the incident," Tillery did not object. See Valley v. People, 165 Colo. 555, 559-62, 441 P.2d 14, 16 (1968) ("failure of counsel to object to the clarifying comments of the trial court, coupled with the fact that ......
  • Request a trial to view additional results

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