Crim. P. 26

History

Source: Entire rule amended and adopted November 9, 2006, effective January 1, 2007. ANNOTATION I. General Consideration. II. Function of Judge and Jury. III. Witnesses. A. Testimony. B. Corroboration. IV. Admissibility. A. In General. B. Confessions and Admissions. C. Exclusionary Rule. D. In-Court Identification. E. Codefendants. F. Circumstantial. G. Documentary. H. Exhibits. V. On Review. I. GENERAL CONSIDERATION. Law reviews. For comment, ‘‘Reporter’s Privilege: Pankratz v. District Court’’, see 58 Den. L.J. 681 (1981). For article, ‘‘Good-Faith Exception to the Exclusionary Rule: The Fourth Amendment is Not a Technicality’’, see 11 Colo. Law. 704 (1982). For article, ‘‘People v. Mitchell: The Good Faith Exception in Colo- rado’’, see 62 Den. U. L. Rev. 841 (1985). Opening statements and arguments of law- yers are not evidence. People v. Jacobs, 179 Colo. 182, 499 P.2d 615 (1972). Such arguments are designed only to sway findings. Arguments to the court are not matters of evidence, have no probative value, and are designed only to sway the court’s findings and conclusions. People In Interest of B. L. M. v. B. L. M., 31 Colo. App. 106, 500 P.2d 146 (1972). II. FUNCTION OF JUDGE AND JURY. Order of proof and presentation of wit- nesses is within sound discretion of the trial court, and error may not be predicated thereon in the absence of a showing of prejudice. Mar- tinez v. People, 177 Colo. 272, 493 P.2d 1350 (1972). Allowing prosecution to recall witnesses for further cross-examination after defense rests its case is matter pertaining to proof and is within sound discretion of trial judge. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973). Jury is permitted to draw any and all rea- sonable inferences of guilt from the evidence before it. Huser v. People, 178 Colo. 300, 496 P.2d 1035 (1972). Effect of waiving jury trial. Where the de- fendant voluntarily waived a jury trial, the trial judge had no recourse but to examine the evi- dence and rule on its admissibility, and the defendant cannot be heard to complain, when he voluntarily, and with advice of counsel, cre- ated a situation which by necessity made the trial judge both the one who decides if evidence is admissible and the one who renders the ver- dict. People v. Mascarenas, 181 Colo. 268, 509 P.2d 303 (1973). The credibility of witnesses, including ex- perts, is within the province of the jury as the fact finder and the jury’s obvious acceptance of the testimony by the prosecution’s experts is not subject to reversal. People v. Moore, 841 P.2d 320 (Colo. App. 1992). III. WITNESSES. A. Testimony. It is axiomatic that witnesses should relate facts and not conclusions. Elliott v. People, 176 Colo. 373, 490 P.2d 687 (1971). But exception when witness must summa- rize impressions of senses. An exception to the rule that a witness may only relate facts exists when a witness has personally observed the physical activity of another and summarizes his sensory impressions thereof because they can hardly be described in any other manner. Elliott v. People, 176 Colo. 373, 490 P.2d 687 (1971). Especially where witness qualifies conclusionary statement. Where a witness qualifies his conclusion immediately subsequent to defendant’s objection by stating that defen- dant ‘‘looked like’’ he was going to do a certain act, the trial court commits no error in overrul- ing defendant’s objection to such testimony. El- liott v. People, 176 Colo. 373, 490 P.2d 687 (1971). Admission of unresponsive testimony not per se wrong. There is nothing per se wrong with the admission into evidence of testimony which may be unresponsive, provided that it is relevant for some purpose. People v. Maestas, 183 Colo. 378, 517 P.2d 461 (1973). Testimony as to possible places of incar- ceration is not to be placed before a jury. People v. Scheidt, 186 Colo. 142, 526 P.2d 300 (1974). The trial court did not commit plain error in allowing the prosecution to elicit testimony during its case-in-chief showing the victim’s character for peacefulness. Defense counsel raised self-defense as an affirmative defense during opening statements and elicited testi- mony to support the affirmative defense during cross examination of a prosecution witness. People v. Baca, 852 P.2d 1302 (Colo. App. 1992). Trial court did not abuse its discretion in requiring defendant to present his expert tes- timony in court rather than through video- conferencing. People v. Casias, 2012 COA 117, 312 P.3d 208. B. Corroboration. Defendant may be convicted upon uncor- roborated testimony of accomplice. Davis v. People, 176 Colo. 378, 490 P.2d 948 (1971). Corroborating evidence defined. Corrobo- rating evidence is evidence, either directly or by proof of surrounding facts and circumstances, that tends to establish the participation of the defendant in the commission of the offense. Davis v. People, 176 Colo. 378, 490 P.2d 948 (1971). IV. ADMISSIBILITY. A. In General. Trial court did not err by admitting gun where there was conflicting testimony con- cerning the gun’s origin since the lack of a positive identification of the gun affected the weight to be given the evidence, not the admis- sibility. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994). All facts proving crime charged admis- sible. All the facts which are necessary to prove the crime charged, when linked to the chain of events which supports that crime, are admis- sible. People v. Anderson, 184 Colo. 32, 518 P.2d 828 (1974). Weakness in chain of evidence addresses weight of evidence. Where the chain of evi- dence is complete, any weakness in the chain goes merely to the weight of the evidence and not to its admissibility. People v. Sanchez, 184 Colo. 25, 518 P.2d 818 (1974). Admission of cumulative evidence is within the discretion of the trial court and its ruling will not be overturned unless a clear abuse of discretion appears. People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974). On rebuttal, party may introduce any competent evidence to explain, refute, counter- act, or disprove proof of other party, even if evidence also tends to support the party’s case in chief. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); People v. Knight, 167 P.3d 141 (Colo. App. 2006). Propriety of permitting surrebuttal evi- dence is within discretion of trial court. People v. Hutto, 181 Colo. 279, 509 P.2d 298 (1973). Where defendant seeks to discuss on surrebuttal matters that are not a reply to new evidence of prosecution, but have been specifi- cally covered in earlier testimony, the trial court does not commit an abuse of discretion in de- nying defendant’s request. People v. Martinez, 181 Colo. 27, 506 P.2d 744 (1973). Except where defendant meeting matter introduced by prosecution on rebuttal. De- fendants should always be permitted to intro- duce, as surrebuttal, evidence which tends to meet any new matter introduced by prosecution on rebuttal; otherwise, it is within discretion of trial court to allow or deny surrebuttal. People v. Martinez, 181 Colo. 27, 506 P.2d 744 (1973). When error in admission of evidence not curable by instructions to jury. Error in ad- mitting evidence may be cured by instructing the jury to disregard it, unless such evidence is so prejudicial that it is unlikely that the jury will be able to erase it from their minds; if it is so prejudicial, a mistrial should be ordered. Edmisten v. People, 176 Colo. 262, 490 P.2d 58 (1971). An error in exposing to the jury certain inad- missible evidence may be cured by instructing the jury to disregard it; however, when such evidence is highly prejudicial, it is conceivable that, but for its exposure, the jury may not have found the defendant guilty, and the trial court’s cautionary instruction to disregard it will not suffice. People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973). Remarks by judge may not constitute re- versible error. Casual remarks of the trial judge, made while passing upon objections to testimony, although ill-advised, do not consti- tute reversible error when not so couched as to especially reflect upon defendant. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972). Nor correct comments by district attorney on evidence. Where the record shows beyond a doubt that the testimony implicated the com- panions of defendant as accomplices, any state- ment by the district attorney with regard to those persons as accomplices, after such a showing, is within the boundaries of proper comment. Fernandez v. People, 176 Colo. 346, 490 P.2d 690 (1971). Trial court’s curative instruction, which di- rected jurors not to consider evidence relating to other transactions allegedly involving defen- dant, cured any errors resulting from admission of such evidence in ‘‘theft by receiving’’ pros- ecution where evidence of defendant’s ‘‘theft by receiving’’ was overwhelming. Vigil v. People, 731 P.2d 713 (Colo. 1987). B. Confessions and Admissions. Admissibility of defendant’s statement to be determined at trial. Where a defendant is given a full ‘‘Miranda’’ warning following his arrest, the admissibility of the statements he made as evidence must be determined by the court at the time of trial rather than on inter- locutory appeal under Rule 41.2, Crim. P. People v. V aughns, 175 Colo. 369, 489 P.2d 591 (1971). Outside presence of jury. The trial court must make a determination of the admissibility of a confession, which entails a determination of the propriety of the ‘‘Miranda’’ warning, out- side of the presence of the jury, at an in camera hearing. Perez v. people, 176 Colo. 505, 491 P.2d 969 (1971). Including issue of voluntariness. Whenever voluntariness in an issue in a trial, there must be a hearing before the trial judge and a determi- nation made on that issue. People v. Sanchez, 180 Colo. 119, 503 P.2d 619 (1972). As to be admissible, confession must be free and voluntary; that is, it must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight. People v. Pineda, 182 Colo. 385, 513 P.2d 452 (1973). Where the defendant makes a voluntary, knowing, and intelligent waiver of his constitu- tional rights, the trial court’s ruling that an oral statement of the defendant is admissible is not error. Dyett v. People, 177 Colo. 370, 494 P.2d 94 (1972). Two-step procedure is proper to resolve issue of voluntariness of confession: First, the trial judge must determine whether the confes- sion is voluntary; and, second, if the confession is voluntary and is admitted into evidence, the trial judge should instruct the jury on the weight to be given the confession. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). Admissibility need only be established by preponderance of evidence. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). A trial judge only has to find that a defen- dant’s statement is voluntary by a preponder- ance of the evidence to justify submission of the statement to the jury. People v. Smith, 179 Colo. 413, 500 P.2d 1177 (1972). Although waiver of rights must be found beyond a reasonable doubt. Before a criminal defendant’s extrajudicial statement is admis- sible as evidence against him, a trial court must find beyond a reasonable doubt that the defen- dant was fully informed of his constitutional rights and that he intelligently and expressly waived them. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971). And the burden is upon the state to show attendant circumstances sufficient from which a knowing and intelligent waiver may be implied. Roybal v. People, 178 Colo. 259, 496 P.2d 1019 (1972). Or testimony inadmissible. Where the state does not meet its burden of showing by clear and convincing evidence that defendant was represented by counsel at a lineup, lineup testi- mony is properly excluded. Fresquez v. People, 178 Colo. 220, 497 P.2d 1246 (1972). Total circumstances and conduct of ac- cused must be considered. In passing on whether a statement is voluntary and whether the accused waived his rights, the court must consider and examine the totality of the facts and circumstances of the case, as well as the conduct of the accused. Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972). Findings must be supported by evidence. Where the findings of the court entered after an in camera hearing are that the statements were understandingly and voluntarily given, that de- fendant at the time had full knowledge of his rights, and the findings are supported by the evidence, it is not error to admit defendant’s statements with evidence. People v. Gallegos, 180 Colo. 238, 504 P.2d 343 (1972). Appellate review. An appellate court is bound to accept the trial court’s findings and ruling on the admissibility of a confession, if the evidence is sufficient to support the trial court’s determination. Redmond v. People, 180 Colo. 24, 501 P.2d 1051 (1972). Where trial court’s finding that accused’s confession was voluntary and admissible is sup- ported by competent evidence, it will not be disturbed on appeal. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). Trial court’s findings of facts on the voluntariness of a confession will be upheld on review if supported by adequate evidence in the record. People v. Pineda, 182 Colo. 385, 513 P.2d 452 (1973); People v. McIntyre, 789 P.2d 1108 (Colo. 1990). Evidence held sufficient to show intelligent waiver of rights. Jorgensen v. People, 178 Colo. 8, 495 P.2d 1130 (1972); McClain v. People, 178 Colo. 103, 495 P.2d 542 (1972). Prior refusal does not make subsequent voluntary statement inadmissible. When the police fully honor a defendant’s refusal to make a statement, the fact of a prior refusal to make any statement should not taint a statement sub- sequently given voluntarily and with full ad- visement of rights. Dyett v. People, 177 Colo. 370, 494 P.2d 94 (1972). When Miranda warning not necessary. Where defendant is not in custody nor deprived of his freedom when a police officer asks a question and the investigation has not focused upon any individual, then the Miranda warning is not necessary, since the defendant is not in custody, and no error is committed in admitting a statement into evidence. Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971). Effect of intoxication on admissibility of statement. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972). Police testimony as to defendant’s oral confession was proper and permissible in all its aspects, where the record indicates that before being questioned the defendant was advised of her complete rights; that she read and signed a rights advisement form; that she understood her rights; that she indicated a willingness to talk; and that she freely and voluntarily told the po- lice about her involvement in the crime. People v. Gallegos, 181 Colo. 264, 509 P.2d 596 (1973). Admonition to jury does not cure errone- ous admission of incriminating statements. An admonition or an instruction to the jury to disregard involuntary incriminating statements does not cure the erroneous admission of such statements. Edmisten v. People, 176 Colo. 262, 490 P.2d 58 (1971). Entire statement is admissible if any por- tion thereof is admissible. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972). But burden of showing continuity or rel- evance in series of statements, or among vari- ous parts of a single statement, is on the party seeking to have the entire series or statement admitted. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972). Consequently, admission of only the rel- evant portions of a statement is not error where there is no showing of continuity or rel- evance between the admitted portions of the statement and the remainder of the statement. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972). Moreover, when the trial court admits into evidence a duplicate copy in addition to the original copy of a formal statement, which has been likewise corrected and signed by the de- fendant, the evidence is merely cumulative, and there is no abuse of discretion in its admission. Jorgensen v. People, 178 Colo. 8, 495 P.2d 1130 (1972). Independent proof of corpus delicti re- quired. An accused’s extra-judicial confession or statement is not sufficient to sustain a con- viction without proof of the corpus delicti inde- pendent of the statement or confession. People v. Maestas, 181 Colo. 180, 508 P.2d 782 (1973); People v. Applegate, 181 Colo. 339, 509 P.2d 1238 (1973); People v. Smith, 182 Colo. 31, 510 P.2d 893 (1973) (abrogated by People v. LaRosa, 2013 CO 2, 293 P.3d 567). To determine whether corroborating evi- dence proves the trustworthiness or reliabil- ity of a confession, corroboration must exist from one or more of the following evidentiary sources: facts that corroborate facts contained in the confession; facts that establish the crime that corroborate facts contained in the confes- sion; or facts under which the confession was made that show that the confession is trustwor- thy or reliable. People v. LaRosa, 2013 CO 2, 293 P.3d 567 (abandoning the corpus delicti rule). The trustworthiness standard cannot be applied retroactively to defendants who com- mitted the alleged offense before the court ad- opted the new standard. People v. LaRosa, 2013 CO 2, 293 P.3d 567; People v. Bott, 2019 COA 100, 479 P.3d 29, aff’d on other grounds, 2020 CO 86, 477 P.3d 137. Use of evidence from uncounseled witness against third party. No reason exists for exclu- sion of evidence obtained from an uncounseled witness, so long as the evidence obtained is not offered against that witness. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). When reference to defendant’s silence is reversible error. Not every reference to defen- dant’s exercise of his fifth amendment right to remain silent mandates automatic reversal; the relevant inquiry is whether the prosecution ‘‘utilized defendant’s silence as a means of cre- ating an inference of guilt’’. People v. Key, 185 Colo. 72, 522 P.2d 719 (1974); People v. Benevidez, 679 P.2d 125 (Colo. App. 1984). Defendant’s statement held to be volun- tary when given in a hospital five hours after a serious accident when he was alert, resting, and not under the effects of medication. Defendant willingly participated, no threats were made to secure his cooperation. People v. Miller, 829 P.2d 443 (Colo. App. 1991). Defendant was not in custody when he was in the hospital for medical treatment. Confine- ment to a hospital bed is insufficient alone to constitute custody. People v. Miller, 829 P.2d 443 (Colo. App. 1991). There was a valid waiver of defendant’s Miranda rights when the defendant nodded his head in response to an officer’s question con- cerning whether he understood his rights. A valid waiver need not be express, but may be inferred from actions and words. People v. Miller, 829 P.2d 443 (Colo. App. 1991). Defendant was not in custody when she was in the hospital even though she had been given morphine prior to her making certain in- criminating statements. Expert testimony indi- cated that the morphine she had been given would not have affected her ability to think, speak, and understand the situation. People v. DeBoer, 829 P.2d 447 (Colo. App. 1991). C. Exclusionary Rule. Annotator’s note. For further annotations concerning search and seizure, see § 7 of art. II, Colo. Const., part 3 of article 3 of title 16, and Crim. P. 41. Exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during, or as the direct result of, an un- lawful invasion of a defendant’s rights by the police. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971). Applicability of ‘‘fruit of the poisonous tree’’ doctrine. To apply the ‘‘fruit of the poi- sonous tree’’ doctrine, the fruit of the search must have been obtained as the direct result of a violation of the defendant’s constitutional rights — such a violation is said to taint the tree and, in turn, the fruit. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971); People v. Potter, 176 Colo. 510, 491 P.2d 974 (1971). Standing to object to illegal seizure. A per- son who is only aggrieved by the admission of evidence illegally seized from a third person lacks standing to object. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). Test of admissibility of evidence seized in lawful search following an unlawful search is whether, granting establishment of the primary illegality, the evidence to which instant objec- tion is made has been arrived at by exploitation of that illegality, or instead by means suffi- ciently distinguishable to be purged of the pri- mary taint. People v. Hannah, 183 Colo. 9, 514 P.2d 320 (1973). Defendant’s allegedly criminal acts were sufficiently attenuated from any illegal con- duct of sheriff’s deputies so that exclusion of evidence was not appropriate. Evidence of a new crime committed in response to an unlaw- ful trespass is admissible. People v. Doke, 171 P.3d 237 (Colo. 2007). Information in sheriff deputy’s affidavit, when considered separately and as a whole, failed to establish a substantial basis for the magistrate’s determination that probable cause existed to issue the warrant. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev’d on other grounds, 2012 CO 66, 289 P.3d 24. Deputy who conducted the search and who was the same officer who prepared the deficient affidavit either knew or should have known that the warrant he obtained based on his own affi- davit was lacking in probable cause, and thus it was objectively unreasonable for him to rely on it. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev’d on other grounds, 2012 CO 66, 289 P.3d 24. Trial court erred when it concluded that (1) probable cause existed to issue the search warrant, and, (2) even absent probable cause, the officers acted in good faith in ex- ecuting the warrant. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev’d on other grounds, 2012 CO 66, 289 P.3d 24. D. In-Court Identification. Admissibility of in-court identification af- ter illegal lineup. Where evidence is presented showing that an in-court identification of the defendant has an independent origin other than an illegal lineup and the trial court so finds, the in-court identification is admissible. People v. Bowen, 176 Colo. 302, 490 P.2d 295 (1971). Determination of independent basis at ‘‘in camera hearing’’. A trial judge’s determination at an ‘‘in camera hearing’’ that an independent basis exists for in-court identification of defen- dant provides a proper foundation for admission of identification testimony before the jury. People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973). And reviewing court will not substitute its judgment. Where trial judge, after considering the totality of the circumstances at an ‘‘in cam- era hearing’’, permits the introduction of iden- tification testimony, he does not abuse his dis- cretion, and reviewing court will not substitute its judgment for that of the trial court. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). Burden of proof is on prosecution. Where there is a violative lineup identification of a defendant, the burden of proof is on the pros- ecution to show an untainted identification of the defendant at trial. People v. Bowen, 176 Colo. 302, 490 P.2d 295 (1971). Clear and convincing evidence required that identification from witness’ own recol- lection. It is the burden of the prosecution to show by clear and convincing evidence that any suggestion was not present and that the identi- fication of the defendant is the product of the witness’s own recollection. Constantine v. People, 178 Colo. 16, 495 P.2d 208 (1972); Sandoval v. People, 180 Colo. 180, 503 P.2d 1020 (1972). Suggestive circumstances do not necessi- tate reversal. Suggestive circumstances at an out-court identification will not by themselves necessitate reversal of a conviction. The con- cern of court is to prevent extrajudicial identifi- cation so unduly suggestive that, as matter of law, it results in substantial likelihood of mis- taken in-court identification. People v. Pacheco, 180 Colo. 39, 502 P.2d 70 (1972). Nor merely cumulative identification. Even if extrajudicial identifications were inadmissible hearsay, where, in light of the other material evidence relating defendants to the crime, such identification is clearly cumulative and any er- ror harmless. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Behavior of witness at confrontation with defendant bears on credibility of the witness’s identification of the defendant at the trial. People v. Bugarin, 181 Colo. 57, 507 P.2d 879 (1973). Independent in-court identification of de- fendant held sufficient to admit into evi- dence. McGregor v. People 176 Colo. 309, 490 P.2d 287 (1971). E. Codefendants. Testimony of accomplice must be scruti- nized and acted upon with great caution. People v. Gomez, 189 Colo. 91, 537 P.2d 297 (1975). Evidence admissible in separate trial also admissible in joint trial. Where evidence would be admissible against defendant in a separate trial, there is no prejudice as a result of the admission of that evidence in a joint trial. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). And evidence inadmissible in separate trial admissible in joint trial with limiting instruction. It is not reversible error to admit a statement into evidence which would not be admissible against one of the defendants in a separate trial where the court gives a limiting instruction and the evidence of that defendant’s involvement is overwhelming, even though it would be better trial procedure not to admit the statement. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Articles in possession of codefendant may be admitted. Where defendant and his codefen- dant jointly participated in the criminal venture, they acted in concert in furtherance of a com- mon illegal purpose, and each, as to the other, was an accomplice; hence, admitting in evi- dence as against defendant, the articles found in the possession of his codefendant is not error where they were a part of the state’s case against both defendants. Miller v. People, 141 Colo. 576, 349 P.2d 685, cert. denied, 364 U.S. 851 (1960). Codefendant cannot object to evidence of the history of the joint undertaking, even though it involves the commission of a crime by one or more of the other codefendants, if the history of the enterprise might throw light on the motive he or his codefendants might have had for committing another crime and which history constitutes a chain of circumstances throwing some light on the probability of their having jointly undertaken to commit the crime charged. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Examination of coconspirator concerning guilty plea arising out of same events. People v. Craig, 179 Colo. 115, 498 P.2d 942, cert. denied, 409 U.S. 1077 (1972). F. Circumstantial. Circumstantial evidence is not relegated to secondary status but is to be considered under the same criteria as direct evidence. People v. Durbin, 187 Colo. 230, 529 P.2d 630 (1974). Conviction of crime may be based upon circumstantial evidence. Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971). Circumstantial evidence, when viewed in the light most favorable to the prosecution, can provide proof of guilt beyond a reasonable doubt. People v. Salas, 189 Colo. 111, 538 P.2d 437 (1975). And quantum of proof required same as for direct evidence. The quantum of proof where guilt is founded upon circumstantial evi- dence is the same as where it is based on direct evidence. Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971). So that evidence not compatible with hy- pothesis of innocence. Where a conviction is sought on circumstantial evidence alone, the prosecution must not only show beyond a rea- sonable doubt that the alleged facts and circum- stances are true, but the facts and circumstances must be such as are incompatible, upon any reasonable hypothesis, with the innocence of the defendant and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant. People v. Calise, 179 Colo. 162, 498 P.2d 1154 (1972). In a circumstantial evidence case, the evi- dence must be consistent with guilt and incon- sistent with any reasonable hypothesis of inno- cence. Roybal v. People, 178 Colo. 259, 496 P.2d 1019 (1972); People v. Vigil, 180 Colo. 104, 502 P.2d 418 (1972); People v. Larsen, 180 Colo. 140, 503 P.2d 343 (1972). And exclusion of every possible theory other than guilt is not required, when refer- ring to the sufficiency of circumstantial evi- dence. People v. Florez, 179 Colo. 176, 498 P.2d 1162 (1972). Test is exclusion of every rational hypoth- esis, which means reasonable hypothesis. People v. Florez, 179 Colo. 176, 498 P.2d 1162 (1972). Where sufficient question is raised by cir- cumstantial evidence, the finding of the jury is conclusive. Elliott v. People, 176 Colo. 373, 490 P.2d 687 (1971). Specific intent proved by circumstantial evidence. Specific intent is ordinarily inferable from the facts, and proof thereof is necessarily by circumstantial evidence. Elliott v. People, 176 Colo. 373, 490 P.2d 687 (1971). Circumstantial evidence held sufficient to justify inference of criminal intent. Evans v. People, 175 Colo. 269, 486 P.2d 1062 (1971). Fingerprint evidence may in some in- stances be sufficient to support conviction where that evidence is tied directly to the com- mission of the crime and no explanation other than guilt exists. Solis v. People, 175 Colo. 127, 485 P.2d 903 (1971). Fingerprints warrant a conviction when the fingerprints clearly and unequivocally establish that the accused committed the crime. Hervey v. People, 178 Colo. 38, 495 P.2d 204 (1972). G. Documentary. Use of photographs. Photographs may be used to graphically portray the appearance and condition of a deceased and the extent of exist- ing wounds and injuries and are competent evi- dence of any relevant matters which a witness may describe in words. Gass v. People, 177 Colo. 232, 493 P.2d 654 (1972). Photographs may be used to graphically por- tray, among other things, the scene of a crime, the identification of a victim, the appearance and condition of the deceased, and the location, nature, and extent of the wounds or injuries, all of which matters are relevant. People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974). Photographs are competent evidence of any relevant matter which is competent for a wit- ness to describe in words. People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974). Test for admissibility of photographs rests on whether the probative value of the photo- graphs is ‘‘far outweighed’’ by their potential inflammatory effect on the jury. People v. White, 199 Colo. 82, 606 P.2d 847 (1980). Test for admissibility applied in People v. Franklin, 683 P.2d 775 (Colo. 1984); People v. Marquiz, 685 P.2d 242 (Colo. App. 1984), aff’d, 726 P.2d 1105 (Colo. 1986). Not inadmissible because of shocking con- tent. That shocking details of a crime may be revealed by photographs does not render them inadmissible if they are otherwise relevant. Gass v. People, 177 Colo. 232, 493 P.2d 654 (1972); People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974). Rather, admissibility discretionary with trial court. The trial court has discretion to determine whether a photographic exhibit is un- necessarily gruesome and inflammatory. People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974). Decision not disturbed absent abuse. Un- less an abuse of discretion is shown, a trial court’s decision as to admissibility of a photo- graph will not be disturbed on review. People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974). Standard for review of admission of pic- tures into evidence is whether they were with- out probative value and they served only to incite the jurors to passion, prejudice, ven- geance, hatred, disgust, nausea, revolt, and all of the human emotions that are supposed to be omitted from the jury’s deliberations. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972). Photographs which should not be used. Photographs such as mug shots which necessar- ily import prior criminality to the defendant should not be used as evidence at trial. People v. Bugarin, 181 Colo. 57, 507 P.2d 879 (1973). Although no prejudice in use of mugshot of confederate. Mugshot of defendant’s con- federate, used by the district attorney for iden- tification purposes, where codefendant was tried separately and the mugshot was taken as a re- sult of the charges in the present case, did not import prior criminal conduct on the defen- dant’s part; no prejudice to defendant resulted by the use of the photograph of his confederate and codefendant for identification purposes in defendant’s trial. People v. Y ork, 189 Colo. 16, 537 P.2d 294 (1975). Pretrial photographic identification. Where the pretrial photographic identification was not, as a matter of law, tainted with impermissible suggestiveness, it is not incumbent upon the prosecution to establish at trial an independent basis for the in-court identification. People v. Opson, 632 P.2d 602 (Colo. App. 1980). Out-of-court identification by photo- graphic array held unduly suggestive. People v. Stevens, 642 P.2d 39 (Colo. App. 1981). Waiver of error regarding admission of photographs. Where no question as to the ad- mission of a photographic exhibit has been raised on appeal, any error has been waived. People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974). Weight to be given fingerprint evidence for trier of fact. Where a proper foundation was laid for the admission of a fingerprint, the weight to be afforded the fingerprint evidence was for the trier of the fact. People v. Gomez, 189 Colo. 191, 537 P.2d 297 (1975). Generally, old fingerprint card inadmis- sible. In the usual case, where other sample prints are available, a fingerprint card made in connection with prior criminal activity should not be admitted because of the danger of dis- closing a past criminal record. Serratore v. People, 178 Colo. 341, 497 P.2d 1018 (1972). Admissibility of tape recording in discre- tion of trial court. The decision as to the ad- missibility of a tape recording is one that rests in the sound discretion of the trial court. People v. Quintana, 189 Colo. 330, 540 P.2d 1097 (1975). H. Exhibits. Use of exhibits from earlier trial not preju- dicial. Fact that certain exhibits used in defen- dant’s trial had court reporter’s identification marks on them remaining from their use in the codefendant’s trial did not result in any preju- dice, and at most, the marks constituted harm- less error which is not ground for reversal. People v. Gallegos, 181 Colo. 264, 509 P.2d 596 (1973). Exhibits of doubtful admissibility to be kept from view of jury. Matters of evidence which are of doubtful admissibility should not be placed on counsel’s table where they may readily be seen by a trial jury. Zamora v. People, 175 Colo. 340, 487 P.2d 1116 (1971). Proper admission of exhibits presumed where not certified as part of appellate re- cord. Where appellate court is unable to ap- praise the alleged prejudicial effect of exhibits because none are certified as a part of the record on review, the reviewing court may presume that the trial court did not abuse its discretion in admitting them into evidence. Gass v. People, 177 Colo. 232, 493 P.2d 654 (1972). Reconstructed scene inadmissible where accuracy disputed. Where an exhibit has been arranged simply to portray a scene and thereby support testimonial contentions, and when other witnesses dispute the accuracy or correctness of the reconstructed scene, trial court should not admit the evidence. People v. Wright, 182 Colo. 87, 511 P.2d 460 (1973). V. ON REVIEW. Waiver of right to appeal admission of tes- timony. Where defendant does not move the trial court to strike testimony complained of, such is a waiver of his right to appeal. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972). Absent serious prejudicial error. Where contemporaneous objection to the admission of evidence on the grounds offered for reversal is not made, then, absent serious prejudicial error, the court will not review the issue. Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972). Lack of contemporaneous objection at trial constitutes waiver of objections to admission of evidence, and such issues may not be raised on appeal; if they are, they will not be considered unless errors are so fundamental as to seriously prejudice basic rights of defendant. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972); People v. Vigil, 180 Colo. 104, 502 P.2d 418 (1972). On review, evidence is viewed in light most favorable to the jury’s verdict. People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974). On the issue of sufficiency of the evidence to sustain a jury’s verdict, the evidence, which includes all reasonable inferences which may be drawn therefrom, must be viewed in the light which most favors the jury’s verdict. People v. Trujillo, 184 Colo. 387, 524 P.2d 1379 (1974). Reviewing court is required to view the evi- dence in the light most supportive of the jury’s verdict, for purposes of appeal. People v. Eades, 187 Colo. 74, 528 P.2d 382 (1974). Where there is an overwhelming amount of evidence in the record that supports the jury’s verdict, that verdict cannot be set aside on re- view. People v. Barker, 189 Colo. 148, 538 P.2d 109 (1975). Because the jury is presumed to have ad- opted that evidence which supports its ver- dict. People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974). Reversal not to be predicated on admission of own evidence. A defendant cannot predicate reversible error on the admission of evidence he offered as a part of his defense. Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972). Appellate court will not review weight of evidence jury found sufficient. Where the jury has found the guilt of an accused to have been proven beyond a reasonable doubt, a court on review will not weigh the evidence. Schermerhorn v. People, 175 Colo. 256, 486 P.2d 428 (1971). A reviewing court cannot invade the province of the jury by making a redetermination on conflicting evidence. People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973). The supreme court will not substitute its judgment for that of the jury in resolving con- flicts in the evidence. People v. Saavedra, 184 Colo. 90, 518 P.2d 283 (1974); People v. O’Donnell, 184 Colo. 434, 521 P.2d 771 (1974). Nor reassess credibility of witnesses. The supreme court will not substitute its judgment for that of the jury in assessing the credibility of witnesses. People v. Saavedra, 184 Colo. 90, 518 P.2d 283 (1974); People v. O’Donnell, 184 Colo. 434, 521 P.2d 771 (1974). Appellate court must look at evidence in state’s favor after conviction. Where the evi- dence was conflicting in many particulars, the court on appeal must look at it in the light most favorable to the state in determining whether there is substantial evidence to support the ver- dict against defendant. People v. Focht, 180 Colo. 259, 504 P.2d 1096 (1972). When reviewing the sufficiency of the evi- dence to sustain a conviction, it must be exam- ined in the light most favorable to the prosecu- tion. People v. Scheidt, 182 Colo. 374, 513 P.2d 446 (1973). Evidence sufficient to sustain judgment. Martin v. People, 178 Colo. 94, 495 P.2d 537 (1972). For reversal, questionable evidence must substantially influence verdict. To constitute reversible error, the questionable evidence must have had a substantial influence on the verdict. People v. Thomas, 189 Colo. 490, 542 P.2d 387 (1975). The trial court did not commit plain error in allowing the prosecution to elicit testimony during its case-in-chief showing the victim’s character for peacefulness. During opening statements, the defense counsel raised the affir- mative defense of self-defense. In addition, de- fense counsel elicited testimony to support the affirmative defense during cross examination of a prosecution witness. People v. Baca, 852 P.2d 1302 (Colo. App. 1992). In addition, the court did not abuse its discre- tion in denying the defendant’s motion for a mistrial on the basis that the court improperly allowed cumulative evidence of the defendant’s flight to be admitted into evidence. Even though the prosecution elicited testimony during cross- examination that the defendant was living under an assumed name, without establishing the rel- evance of the evidence as instructed by the court, the court issued a curative instruction to counter any unfair prejudice to the defendant. People v. Baca, 852 P.2d 1302 (Colo. App. 1992).