Valley v. People
| Decision Date | 13 May 1968 |
| Docket Number | No. 22445,22445 |
| Parties | Dennis M. VALLEY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
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.
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 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 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 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 and Hopper v. People, 157 Colo. 405, 382 P.2d 540. Suffice it to say that we find no abuse of discretion in the refusal of the trial court to declare a mistrial. By so holding we are not to be considered as thereby approving the 'volunteer' statement made by a law enforcement official, who presumably knew or should have known better. However, candor suggests that when the entire record is reviewed and considered as a whole, this incident is really only incidental and does not appear to be of any great moment. Certainly there is nothing in the record to indicate that the jury was inflamed or impassioned by this fleeting reference to the fact that both Valley and Oliver had mug shots on file in the sheriff's office. And, having the advantage of a hindsight look, we now know that the jury acquitted Oliver even though the testimony regarding 'mug shots' applied equally to him, as well as Valley. In short, the incident does not require a reversal of this judgment and a retrial of the matter.
We now consider the so-called 'clarifying' instruction relating to circumstantial evidence given the jury by the trial court. Counsel for Valley contends that this is a violation of the prohibition contained in C.R.S.1963, 39--7--19, which statute provides, among other things, that a trial court, after instructions are given, shall not 'orally qualify, modify or in any manner explain the same to the jury.'
In the instant case after the jury had deliberated some four hours, it sent a note to the trial judge wherein it requested a clarification of the instruction pertaining to circumstantial evidence. The jury was thereupon brought into open court, and the trial court promptly proceeded to 'orally clarify' its instruction on circumstantial evidence. Whether the trial court first consulted counsel as to the advisability of embarking upon such a daring...
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The People Of The State Of Colo. v. Tillery
...“[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 counsel ... was......
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...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 (1968). Here, as discussed above, the jury sent out a three-part question, which the court discussed with the prosecution ......
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People v. Rediger
...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 trial court, coupled with the fact that counsel f......
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People v. Tee
...is an "active participant" with the trial court in matters involving the jury, such action "amounts to a waiver." Valley v. People , 165 Colo. 555, 561, 441 P.2d 14, 16 (1968) ; see also People v. Tillery , 231 P.3d 36, 44 (Colo. App. 2009) (holding that Tillery’s argument that the instruct......