People v. Grant

571 P.2d 1111, 40 Colo. App. 46
CourtColorado Court of Appeals
DecidedSeptember 8, 1977
Docket76-085
StatusPublished
Cited by8 cases

This text of 571 P.2d 1111 (People v. Grant) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Grant, 571 P.2d 1111, 40 Colo. App. 46 (Colo. Ct. App. 1977).

Opinion

571 P.2d 1111 (1977)

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Theodore D. GRANT, Defendant-Appellant.

No. 76-085.

Colorado Court of Appeals, Div. I.

September 8, 1977.
Rehearing Denied September 22, 1977.

*1113 J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Mary J. Mullarkey, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Dorian E. Welch, Deputy State Public Defender, Denver, for defendant-appellant.

BERMAN, Judge.

Defendant Grant was convicted, following a jury trial, of felony murder, aggravated robbery, and second degree assault. Contending that (1) prior inconsistent statement of a witness were erroneously admitted, (2) he was denied his right to effective assistance of counsel by his attorney's failure to interview one of the victims prior to his death, (3) he was improperly convicted of the assault charge, and (4) the evidence is insufficient to support his remaining convictions, defendant appeals. We affirm.

On the evening of October 5, 1974, shortly prior to the crimes at issue, a man with a nylon stocking over his head appeared at the door of a Denver service station for the apparent purpose of robbing the station. Upon discovering the service station was attended by two men, however, the would-be robber discarded the stocking and fled.

The attendants immediately flagged a police car. While conversing with the attendants, the patrolmen heard several gunshots coming from the direction in which the robbery suspect had fled. As the officers drove away, they saw the defendant, a black man fitting the description of the suspect, coming out of an alley and approaching a parked car. The car was occupied by another male.

*1114 One of the officers conducted a patdown of the defendant, which revealed two wallets—defendant's and that of one Robert Arp. In response to the detaining officer's inquiry, the defendant stated that he had just come from his girlfriend's house, and that he had found the second wallet in the alley. The other officer directed a searchlight down the alley. The light exposed a revolver which upon examination disclosed one misfired and two fired cartridges. Advising the defendant of his rights, the officers then placed defendant under arrest.

That same evening, Robert Arp and Seymour Brown had been drinking at a neighborhood bar about one block from the service station. The officers who responded to the attendants' summons had moments before observed the pair walking outside the bar in a manner suggesting they were "quite intoxicated." A few minutes after Arp and Brown left the bar, another patron found Brown lying face down on the ground with what appeared to be a bullet wound in his back and Arp sitting in the car nearby. Arp's wallet was missing; Brown's wallet was found on the ground near his body, along with nylon pantyhose containing fragments of "Negroid head hair." Brown subsequently died of the gunshot wound. Arp sustained a flesh wound from the incident.

When taken to the shooting scene, defendant denied firing a gun. One of the arresting officers inquired about hearing several shots. Defendant stated in reply that he was buying a gun from a party who "took the gun and fired it twice to show me that it worked. However, when he fired the gun, I got scared; I grabbed the gun, I grabbed the wallet, and I ran." When told that the victim was seriously wounded and might die, defendant said "Oh hell," or some other expletive.

Another of the arresting officers testified that at the police station and in his presence the defendant made several phone calls during which he admitted shooting at least one of the victims. The officer testified that he heard the defendant say:

"Mama, I just shot a guy. I don't know if he's dead or not. . . . You better get a lawyer. I don't know if he's dead or not."

The officer testified that he also heard the defendant relate in a conversation with another party, that he had "shot a guy."

The defendant testified in his own defense that he was in the process of purchasing the gun when an argument between the two victims as to the sale price ensued, that one of the two discharged the gun, and that he then took the one victim's wallet to retrieve his own money.

At the close of the trial, the court denied defendant's motion for a judgment of acquittal and submitted the case to the jury which found the defendant guilty of the three counts.

I.

The defendant first contends that, since the requirements of § 16-10-201, C.R.S. 1973, were not met, the trial court erred in admitting two prior inconsistent statements allegedly given by the witness Varnell Green to police officers.

At the outset, we note that this issue is not properly before us. To preserve review on appeal, an assignment of error must ordinarily be included in a motion for a new trial. Crim.P. 33(a); Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971). Although defendant's trial counsel asserted in his motion for a new trial that Green's reduced mental capacity rendered his statements incompetent, he did not contend the statements were inadmissible for failure to comply with § 16-10-201, C.R.S.1973. Thus, unless the alleged error was of such significance as to affect the substantial rights of the defendant, i. e., "plain error," Crim.P. 52(b), defendant is precluded from raising in this appeal that new ground of objection. People v. Robinson, Colo., 556 P.2d 466 (1976); People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974).

In any event, we find the defendant's contention to be without merit.

*1115 Section 16-10-201, C.R.S.1973, provides:

"(1) Where a witness in a criminal trial has made a previous statement inconsistent with his testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and the inconsistent statement relate, if:
(a) The witness, while testifying, was given an opportunity to explain or deny the statement, or the witness is still available to give further testimony in the trial; and
(b) The previous inconsistent statement purports to relate to a matter within the witness's own knowledge."

If prior statements of a witness appear inconsistent and the two statutory conditions are adequately established, the statute mandates admission of prior inconsistent statements even as against a party's own witness, whether that party be the prosecution or the defense. People v. Bastardo, Colo., 554 P.2d 297 (1976); see People v. Pepper, Colo., 568 P.2d 446 (announced August 29, 1977); People v. Hawthorne, Colo., 548 P.2d 124 (1976).

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