Opinion
No. 23093.
Decided March 17, 1969.
Defendant was convicted of robbery and conspiracy and brought error.
Affirmed.
1. PROSECUTING ATTORNEYS — Closing Argument — Comment — Accuracy — Witness — Testimony — Prejudice — Negative. Where district attorney in closing argument stated that he thought that one of the state's witnesses was very accurate in her testimony, held, absent a showing of the context in which the statement was made, it was not an improper or prejudicial remark.
2. CRIMINAL LAW — Attorney — Propriety — Comment — Witness — Tests of Credibility. It is not improper for attorneys to comment as to how well and in what manner a witness measures up to the tests of credibility.
3. INSTRUCTIONS, CRIMINAL — Tendered — Robbery — Conspiracy — Refusal of Court — Lack — Record — Supreme Court — No Comment. Reviewing court can make no observation as to whether trial court erred in refusing to give two tendered instructions in prosecution for robbery and conspiracy where they are not in the record of proceedings and it is unable to determine what was contained therein.
4. CRIMINAL LAW — Presumption — Regularity — Ruling of Court — Absence — Contrary Showing. The presumption of the regularity of the trial court's ruling prevails in the absence of a specific showing to the contrary.
Error to the District Court of Pueblo County, Honorable Matt J. Kikel, Judge.
Bartley, Jagger and Glover, R. Allan Glover, for plaintiff in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Robert L. Hoecker, Assistant, for defendant in error.
This writ of error presents very limited issues not related to the facts or circumstances surrounding the alleged commission of the crime, and therefore a recital of the facts is unnecessary.
The defendant Valdez was convicted of robbery and conspiracy. He seeks reversal of those convictions, alleging that the district attorney made improper and prejudicial remarks during the closing argument and that the court erred in refusing to give two tendered instructions.
The record on error does not contain the statements of the district attorney nor does it reflect that any objection was made to the court at the time of the alleged prejudicial remarks. All that we know of what happened is a statement in the brief that the district attorney said, "I think Mrs. Hilborn [one of the state witnesses] was very accurate in her testimony."
[1,2] We do not know in what context this statement was made. Standing by itself as quoted, it does not appear to us to be an improper or prejudicial remark. It is not improper for attorneys to comment as to how well and in what manner a witness measures up to the tests of credibility.
[3,4] Concerning the refusal to give the tendered instructions, they are not in the record of proceedings. Because we are unable to determine what was contained therein, we can make no observation as to whether they were proper and should have been given. The presumption of the regularity of the trial court's ruling prevails in the absence of a specific showing to the contrary.
The judgment is affirmed.
MR. CHIEF JUSTICE McWILLIAMS, MR. JUSTICE KELLEY and MR. JUSTICE LEE concur.