Opinion
Page 154
R. Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for the petitioner-appellee.
Kenneth A. Padilla, Denver, for the respondent-appellant.
PIERCE, Judge.
A minor, D. D. S., seeks to set aside an adjudication of delinquency rendered by the Juvenile Court of the City and County of Denver. The trial court entered the delinquency order pursuant to 1967 Perm.Supp., C.R.S.1963, 22--3--6(6)(a), following trial to a jury in which she was found to have committed acts that would constitute the crime of assault and battery if committed by an adult. We affirm the adjudication of delinquency.
I
The minor first contends that she was denied due process of law and was entitled to a mistrial as a result of a statement made by the district attorney near the conclusion of his summation to the jury. In his argument relating to the minor's alibi defense, he stated to the jury:
'Only you and only (D., the minor) can indicate what (D.) did after one o'clock--between one and five.'
The minor's counsel objected immediately on the grounds that the statement was an impermissible reference to the minor's election not to testify. The court denied her motion for mistrial, but granted the minor's motion for a cautionary instruction to the jury. The court immediately addressed the jury as follows:
'Ladies and Gentlemen of the jury. The question has arisen regarding . . . remarks about 'only (D.) and you can determine what happened that day.' The Court strikes those remarks and you are instructed to disregard them. As the Court told you at the beginning of this trial, the minor is not required to testify. The minor has a constitutional right to remain silent. She's chosen so to do, so the remarks of the District Attorney are out of order and you are instructed to disregard them because (D.) is not required, under any circumstances to come forward.'
Thereafter, the district attorney apologized to the jury for having made the improper remark.
While we realize that a direct reference to a minor's silence may be prejudicial error, People v. Ledesma, 171 Colo. 407, 468 P.2d 27; Montoya v. People, 169 Colo. 428, 457 P.2d 397, we view the reference made in this case as an indirect reference to the minor's election not to testify. See Martinez v. People, 162 Colo. 195, 425 P.2d 299. In addition, we conclude that any defect injected by this remark was cured by the prompt corrective measures taken by the court, and upon review of the entire record, the statement of the district attorney did not constitute reversible error. People v. Gilkey, Colo., 507 P.2d 855. See also State v. Ayers, Or.App., 518 P.2d 190; State v. King, 110 Ariz. 36, 514 P.2d 1032.
II
The minor further complains that she was denied due process because she had been served with a demand for notice of alibi indicating that the time of the alleged incident was at a certain time of day on a certain date, but then the people were allowed to present evidence that the offense occurred approximately three hours earlier.
The record indicates that the district attorney did serve the demand for notice of alibi upon the child which stated:
'That in the above-entitled matter the District Attorney will contend that the minor child, (D. D. S.) was, on the 10th day of June, 1972, between the hours of 5:00 o'clock P.M. and 5:30 o'clock P.M. at (a park in Denver).
To this the child responded:
'That on the 10th day of June, 1972, between the hours of 5:00 o'clock P.M. and 5:30 o'clock P.M., the minor child was in an automobile on Interstate 25 between Pueblo, Colorado and Colorado Springs, Colorado on route to Denver, Colorado.'
At trial, the district attorney attempted to establish the time of the incident between 5 and 5:30. However, the state's own witnesses stated on cross-examination that the occurrence took place at some time between 2 and 2:30 P.M.
The Children's Code, 1967 Perm.Supp., C.R.S.1963, 22--3--2, does not require that the time of the alleged occurrence be pled. Nor is there any requirement that the exact time of the offense be proved, even where it is alleged, if the time is not of the essence or a gist of the offense--which it is not in this instance. See Jordan v. People, 161 Colo. 54, 419 P.2d 656; Dill v. People, 19 Colo. 469, 36 P. 229; State v. Spiegel, 39 Wyo. 309, 270 P. 1064, 64 A.L.R. 289.
The question then becomes whether specification of a precise time in a demand for notice of alibi precludes an adjudication of delinquency where the proof indicates a different time. We conclude that precise conformity of the proof is no more necessary here than it is with respect to pleading, unless the minor is thereby deluded into the position of presenting an ineffectual defense. On the facts before us, the minor was in no way prejudiced in her defense by the time differential.
The reocrd also indicates, as was noted by the trial court, that since the minor's alibi witnesses testified that she was on her way to Pueblo before 1 P.M. on the date in question, and was on her way back at 5:30 P.M., the alibi defense presented by the minor covered both relevant periods of time. It should further be noted that the court submitted to the jury a proper instruction on alibi, carefully detailing all of the presumptions favoring the minor and, in addition, submitted to the jury another instruction favorable to the child which stated as follows:
'The District Attorney made a demand prior to trial for notice of alibi upon the minor child and stated that the time of the alleged offense was between the hours of 5 and 5:30 on June 10, 1972.
You are instructed that you must consider all the evidence as to the time of the alleged offense inclding the evidence pertaining to the defense of alibi.'
III
Finally, we would note that the record before us indicates that the district attorney was genuinely surprised by the testimony of the state's witnesses as to the time of the perpetration of the alleged offense. Nothing in this record indicates any bad faith attempt by the district attorney to trap the defense into proving an ineffectual alibi. Where there is neither the intent to mislead, nor the effect of misleading the minor, we can find no prejudicial error on this issue.
Judgment affirmed.
ENOCH and RULAND, JJ., concur.