Opinion
No. 25462
Decided July 30, 1973.
Defendant was convicted of forcible rape and appealed.
Affirmed
1. CRIMINAL LAW — Mistrial — Denial — Forcible Rape — Jury — Observe — Escort — Officers — Stipulation — Not Shackled — Abuse — Negative. Where record is devoid of anything to indicate that defendant — who was charged with forcible rape and not free on bond — requested court to examine jury as to who, if any, had actually observed that he was escorted from courtroom by two uniformed sheriff's officers in full view of prospective and empaneled jurors or was prejudiced thereby, or that he requested jury be instructed to disregard incident, and where record reflects that defendant stipulated to fact that he was not shackled in presence of any juror, that he was in civilian clothes, and that none of the officers were wearing any visible weapons, held, under the circumstances, trial court did not abuse its discretion in denying defendant's motion for mistrial.
2. RAPE — Forcible — Flight Instruction — Prejudicial — Plain Error — Negative. In prosecution for forcible rape, defendant's contention — that court's instruction to jury on flight was not warranted under the evidence and that court take notice of the alleged error since it was seriously prejudicial and constituted "plain error" — is without merit.
Appeal from the District Court of Larimer County, Honorable Dale E. Shannon, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Tennyson W. Grebenar, Assistant, for Plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Kenneth J. Russell, Deputy, for defendant-appellant.
The defendant was found guilty of the offense of forcible rape. We affirm.
I.
[1] The defendant argues that the trial court should have granted his motion for a mistrial since, during a recess on the first trial day, he was escorted from the courtroom by two uniformed sheriff's officers in full view of prospective and empaneled jurors. The defendant stipulated to the fact that he was not shackled in the presence of any juror, that he was in civilian clothes, and that none of the officers were wearing any visible weapons.
There is nothing in the record to indicate that the defendant requested the court to examine the jury as to who, if any, had actually observed the incident or were prejudiced thereby; or that the defendant requested that the jury be instructed to disregard the incident and not to draw any inferences from their observation of the uniformed officers. See People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973). The defendant was not free on bond during the trial. Additionally, he was being tried for a serious offense and had previously managed to escape from jail. We find no abuse of discretion in the denial of the motion for mistrial.
II.
[2] The defendant contends that the court's instruction to the jury on flight was not warranted under the evidence. the defendant did not contemporaneously object to the instruction at trial, although such objection was included in his motion for a new trial.
The defendant urges that the court take notice of the alleged error, claiming that it was seriously prejudicial and constituted "plain error." Upon review of the evidence presented at trial, we do not agree. Arellano v. People, 177 Colo. 286, 493 P.2d 1362 (1972); see also, Roybal v. People, 166 Colo. 541, 444 P.2d 875 (1968).
Judgment affirmed.
MR. JUSTICE ERICKSON does not participate.