Crim. P. 12

History

Source: (b)(3) amended and adopted December 14, 2011, effective July 1, 2012. ANNOTATION I. General Consideration. II. Pleading and Motions. III. Motion Raising Defenses and Objec- tions. A. Defenses and Objections That May be Raised. B. Defenses and Objections That Must be Raised. C. Time of Making Motion. D. Hearing. I. GENERAL CONSIDERATION. Technical noncompliance with Crim. P. 16 that does not cause prejudice to defendant will not constitute reversible error. People v. Her- nandez, 695 P.2d 308 (Colo. App. 1984). Applied in Stapleton v. District Court, 179 Colo. 187, 499 P.2d 310 (1972); People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975); People v. Davis, 194 Colo. 466, 573 P.2d 543 (1978); People v. Dickinson, 197 Colo. 338, 592 P.2d 807 (1979); People v. V elasquez, 641 P.2d 943 (Colo. 1982); People v. Peterson, 656 P.2d 1301 (Colo. 1983). II. PLEADING AND MOTIONS. Legal effect of present nomenclature for old procedures is the same. Although the granting of motions to quash, demurrers, pleas in bar, pleas in abatement, motions in arrest of judgment, and the declarations of a statute un- constitutional have been abolished by section (a) and Crim. P. 29(a) the legal effect of the present nomenclature for those procedures is the same, that is, a ruling adverse to the state effectively terminates its prosecution of the de- fendant and results in a ‘‘final judgment’’. People v. Cochran, 176 Colo. 364, 490 P.2d 684 (1971). III. MOTION RAISING DEFENSES AND OBJECTIONS. A. Defenses and Objections That May Be Raised. Motion to suppress a lineup identification is within the scope of this subsection (b)(1). People v. Renfrow, 172 Colo. 399, 473 P.2d 957 (1970). B. Defenses and Objections That Must Be Raised. Waiver of defenses and objections by fail- ure to raise. Failure to raise defenses and ob- jections referred to in subsection (b)(2) by mo- tion constitutes waiver of the defenses and objections. Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970). Subsection (b)(2) does not require a defen- dant to either raise a double jeopardy claim at trial or waive such claim. People v. Zadra, 2017 CO 18, 389 P.3d 885. Nothing in this rule requires a defendant to file a motion regarding any error that might later flow from the charging docu- ment, including a double jeopardy error. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816; Zubiate v. People, 2017 CO 17, 390 P.3d 394. Motions not within scope of subsection (b)(2). A motion for the return of property and to suppress evidence is not a defense or objec- tion based on defects in the institution of the prosecution or in the indictment, information, or complaint, and, thus, does not fall within the scope of subsection (b)(2). Adargo v. People, 173 Colo. 323, 478 P.2d 308 (1970). A motion to suppress is not a ‘‘defense or objection’’ based on defects listed in this sec- tion. People v. Robertson, 40 Colo. App. 386, 577 P.2d 314 (1978). Trial court should entertain motion to dis- miss for lack of jurisdiction at whatever stage of the proceedings the question is raised. Maddox v. People, 178 Colo. 366, 497 P.2d 1263 (1972). Absence of verification on information is not jurisdictional. Quintana v. People, 168 Colo. 308, 451 P.2d 286 (1969). Rather, it is for benefit of defendant and is waived unless timely objection is made thereto. Quintana v. People, 168 Colo. 308, 451 P.2d 286 (1969); Bergdahl v. People, 27 Colo. 302, 61 P. 228 (1900); Curl v. People, 53 Colo. 578, 127 P. 951 (1912); Harris v. Municipal Court, 123 Colo. 539, 234 P.2d 1055 (1951); Bustamante v. People, 136 Colo. 362, 317 P.2d 885 (1957); Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970); Workman v. People, 174 Colo. 194, 483 P.2d 213 (1971); Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971); Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971). C. Time of Making Motion. Defects raisable in motion in arrest of judgment or for new trial. When objections to the want of a verifying affidavit and to the competency and credibility of the affiant are raised by the defendant for the first time in a motion in arrest of judgment or in the alterna- tive for a new trial, and the record does not reveal that any objections were raised prior to that time, although the opportunity existed, then the objections come too late. Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971). Insufficiency of indictment assertable on appeal. Although defendant did not raise the insufficiency of the indictment at trial or in his motion for new trial, he is not thereby pre- cluded from asserting that defect on appeal. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975). Selective prosecution claim must be raised prior to trial. A selective prosecution claim is an objection based upon a defect in the institu- tion of the prosecution, and, therefore, a defen- dant’s failure to raise the objection in a timely motion constitutes a waiver of the objection. People v. Gallegos, 226 P.3d 1112 (Colo. App. 2009). Motion made after trial but before sen- tencing. A motion challenging the constitution- ality of a statute preserves the issue on appeal where the motion is made after oral argument on motion for judgment of acquittal or for new trial, but before sentencing. People v. Cagle, 751 P.2d 614 (Colo. 1988). A substantive defect in an information may be raised at any time during the pro- ceedings. People v. Williams, 961 P.2d 533 (Colo. App. 1997), aff’d in part and rev’d in part on other grounds, 984 P.2d 56 (Colo. 1999). Exceptions to duplicitous count must be made before trial. A duplicitous count in a criminal information is only a matter of form, and exceptions which go merely to form must be made before trial. Russell v. People, 155 Colo. 422, 395 P.2d 16 (1964); Specht v. People, 156 Colo. 12, 396 P.2d 838 (1964). Colorado law is clear that subsection (b) does not require a defendant to object within the time limit under that subsection when the error flows from circumstances that are not apparent from the charging document. People v. Wester-Gravelle, 2018 COA 89M, 474 P.3d 91, rev’d on other grounds, 2020 CO 64, 465 P.3d 570. A unanimity issue arose only after the pros- ecution decided to introduce at trial three differ- ent written instruments under a single charge of forgery of ‘‘a written instrument’’. People v. Wester-Gravelle, 2018 COA 89M, 474 P.3d 91, rev’d on other grounds, 2020 CO 64, 465 P.3d 570. Compulsory joinder defense not waived. Where compulsory joinder defense was not available when prosecution of felony charge was instituted because second charge had not been filed, defendant did not waive compulsory joinder claim when he failed to raise issue within twenty days after his arraignment on felony charge and, therefore, claim was not based on a defect in institution of prosecution and, thus, this rule did not prevent defendant from moving to dismiss. People v. Rogers, 742 P.2d 912 (Colo. 1987). Waiver of objection to legality of arrest. A defendant who fails to object to his arrest before trial waives his right to challenge the legality of his arrest. Massey v. People, 179 Colo. 167, 498 P.2d 953 (1972); People v. Hernandez, 695 P.2d 308 (Colo. App. 1984). Admissibility of alibi evidence. While a showing by a defendant of good cause for non- compliance with this rule is a proper factor to be considered by a trial court in deciding whether alibi evidence should be admitted, jus- tification for noncompliance is not the sole de- terminant of admissibility. People v. Moore, 36 Colo. App. 328, 539 P.2d 489 (1975). The critical consideration for admissibility of alibi evidence is whether the proffered alibi evidence should be admitted in order to assure the defendant a fair trial. People v. Moore, 36 Colo. App. 328, 539 P.2d 489 (1975). D. Hearing. Defendant’s burden on motion to dismiss for want of due prosecution. A motion for discharge or for dismissal for want of due pros- ecution of a charge of crime must be sustained by the accused; he has the burden of showing that he was not afforded a speedy trial. Jordan v. People, 155 Colo. 224, 393 P.2d 745 (1964).