Crim. P. 33

History

Source: Entire rule amended March 15, 1985, effective July 1, 1985; (a) amended October 29, 1987, effective January 1, 1989; (d) added April 20, 2000, effective July 1, 2000; (c) amended and adopted December 14, 2011, effective July 1, 2012. ANNOTATION I. General Consideration. II. No Review Unless Motion Made. III. Motion, Contents, Time. A. In General. B. Contents. C. Based on Newly Discovered Evi- dence. D. Based on Other Grounds. I. GENERAL CONSIDERATION. Law reviews. For note, ‘‘The Criminal Jury and Misconduct in Colorado’’, see 36 U. Colo. L. Rev. 245 (1964). For article, ‘‘Criminal Pro- cedure’’, which discusses a Tenth Circuit deci- sion dealing with a motion for a new trial based on recanted testimony, see 62 Den. U. L. Rev. 189 (1985). Prior to April 1974 motion for new trial not required. Prior to April 1974 there was no express language in any of the rules of criminal procedure or appellate rules that required a mo- tion for new trial. People v. Martinez, 190 Colo. 507, 549 P.2d 758 (1976). Motion does not bar double jeopardy pro- tection against retrial. A motion for a new trial does not relinquish the right to invoke double jeopardy guarantees against retrial of the charge upon which no verdict was returned. Ortiz v. District Court, 626 P.2d 642 (Colo. 1981). Federal court will deny ‘‘habeas corpus’’ where defendant fails to exhaust remedies under this rule. Tanksley v. Warden of State Penitentiary, 429 F.2d 1308 (10th Cir. 1970). Granting or denying motion for new trial does not constitute an appealable final judg- ment. People v. Jones, 690 P.2d 866 (Colo. App. 1984). Applied in People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976); People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977); People v. Vigil, 39 Colo. App. 371, 570 P.2d 13 (1977); People v. Davis, 194 Colo. 466, 573 P.2d 543 (1978); People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978); People v. Reyes, 42 Colo. App. 73, 589 P.2d 1385 (1979); People v. Am. Health Care, Inc., 42 Colo. App. 209, 591 P.2d 1343 (1979); People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1979); People v. Rael, 199 Colo. 201, 612 P.2d 1095 (1980); People v. Glenn, 200 Colo. 416, 615 P.2d 700 (1980); People v. Smith, 620 P.2d 232 (Colo. 1980); People v. Trujillo, 624 P.2d 924 (Colo. 1980); People v. Dillon, 631 P.2d 1153 (Colo. App. 1981); People v. Holder, 632 P.2d 607 (Colo. App. 1981); People v. Dillon, 633 P.2d 504 (Colo. App. 1981); People v. Harris, 633 P.2d 1095 (Colo. App. 1981); People v. Allen, 636 P.2d 1329 (Colo. App. 1981); People v. Brassfield, 652 P.2d 588 (Colo. 1982); People v. Matthews, 662 P.2d 1108 (Colo. App. 1983); People v. Anderson, 703 P.2d 650 (Colo. App. 1985). II. NO REVIEW UNLESS MOTION MADE. Lack of contemporaneous objection is waiver. Lack of contemporaneous objection to testimony at time of trial constitutes waiver of new trial, and issue cannot be raised on appeal. People v. Routa, 180 Colo. 386, 505 P.2d 1298 (1973). Where defendant failed to object to an iden- tification procedure at his preliminary hearing, and he made no objection to victim’s testimony concerning the preliminary hearing identifica- tion at the trial or in his motion for new trial, defendant could not assert this objection for the first time on appeal. People v. Horne, 619 P.2d 53 (Colo. 1980). Appellate review is generally limited to er- rors presented to trial court for its consider- ation by a motion for new trial. Vigil v. People, 196 Colo. 522, 587 P.2d 1196 (1978). Only matters contained in the motion for new trial will be considered on appeal. Quintana v. People, 152 Colo. 127, 380 P.2d 667, cert. de- nied, 375 U.S. 863, 84 S. Ct. 132, 11 L. Ed. 2d 89 (1963); Cook v. People, 129 Colo. 14, 266 P.2d 776 (1954); Rueda v. People, 141 Colo. 502, 348 P.2d 957, cert. denied, 362 U.S. 923, 80 S. Ct. 673, 4 L. Ed. 2d 744 (1960); Wilson v. People, 143 Colo. 544, 354 P.2d 588 (1960); Dyer v. People, 148 Colo. 22, 364 P.2d 1062 (1961); Peterson v. People, 153 Colo. 23, 384 P.2d 460 (1963); Brown v. People, 158 Colo. 561, 408 P.2d 981 (1965); Lucero v. People, 158 Colo. 568, 409 P.2d 278 (1965). Failure to raise an issue in the motion for a new trial deprives the appellate court of juris- diction to consider it unless the issue is one involving plain error affecting the substantial rights of the defendant. People v. Peterson, 656 P.2d 1301 (Colo. 1983). Failure to file a motion for new trial pre- cludes consideration of issues raised on ap- peal. People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980); People v. Ullerich, 680 P.2d 1306 (Colo. App. 1983). Matters which counsel intends to raise on appeal must be preserved in a motion for a new trial. Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971). When errors alleged with regard to the ad- mission of testimony were not raised during the trial or in the defendant’s motion for a new trial, they need not be considered on appeal. Ortega v. People, 178 Colo. 419, 498 P.2d 1121 (1972). Absent a properly filed and acted on motion for new trial, appellate review is precluded. People v. Nisted, 653 P.2d 60 (Colo. App. 1980). Filing notice of appeal divests court of power to grant motion. Once the notice of appeal is filed, the trial court is left powerless to grant a motion for a new trial. People v. Dillon, 655 P.2d 841 (Colo. 1982). Motion prerequisite for review of proba- tion revocation. A motion for new trial is a prerequisite for appellate review of a revocation of probation except when the propriety of a sentence is being appealed as provided in Rule 4(c), C.A.R. People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980). And motion required for review of revoca- tion of deferred sentence. Compliance with the motion for a new trial requirement of section (a) is a prerequisite for appellate review of a trial court’s judgment revoking a deferred sentence, and imposing a sentence. Hallman v. People, 652 P.2d 173 (Colo. 1982). Reasons need not be set forth in denial of motion. When a motion for a new trial is de- nied, reasons need not be set forth, because the motion is the basis and foundation for review of the judgment on appeal. Losavio v. District Court, 182 Colo. 186, 512 P.2d 264 (1973). But where there is a claim that the trial court committed plain error which was preju- dicial to substantial rights of the defendant, ap- pellate review may be had without the issue being raised in a new trial motion. People v. Ullerich, 680 P.2d 1306 (Colo. App. 1983). III. MOTION, CONTENTS, TIME. A. In General. Purpose of a motion for a new trial is to accord the trial judge a fair opportunity to con- sider and correct, if necessary, any erroneous rulings, and to acquaint him with the specific objection to those rulings. Losavio v. District Court, 182 Colo. 186, 512 P.2d 264 (1973). The only purpose of requiring a motion for a new trial is to correct the trial court’s own errors. Haas v. People, 155 Colo. 371, 394 P.2d 845 (1964). Timely motion for new trial is not jurisdic- tional in the sense that without it the court would lack authority to adjudicate the subject matter. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Unlike cases governed by the rules of civil procedure, in a criminal case the timely filing of a motion for new trial is not a jurisdictional prerequisite to the appeal of a judgment of con- viction. People v. Masamba, 39 Colo. App. 197, 563 P.2d 382 (1977). An untimely filed motion for new trial does not divest an appellate court of jurisdiction to consider the issues raised on appeal which are also presented in the motion. People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980). Trial court may grant extension of filing time. In contrast to the provisions of the rules of civil procedure governing motions for new trial, upon a showing of excusable neglect the trial court is authorized under the criminal rules of procedure to grant an extension of time for filing the motion for new trial after the original 10 days had expired, or, after the expiration of any extended date granted by the trial court. People v. Masamba, 39 Colo. App. 197, 563 P.2d 382 (1977). Trial court may grant extensions to file a motion for a new trial that is filed after the initial 15-day period if the motion to extend is filed within time period of the previous extension granted by the court. People v. Clark, 2015 COA 44, 370 P.3d 197. Defendant may show excusable neglect for late filing. Where the prosecution objects to the late filing of a motion for new trial prior to the time of hearing on the motion, the defendant is afforded the opportunity to show, pursuant to Rule 45(b)(2), Crim. P., that the late filing was due to excusable neglect. People v. Masamba, 39 Colo. App. 197, 563 P.2d 382 (1977). Timeliness issue held waived. The prosecu- tion, by failing to object to the trial court’s hearing and deciding the new trial motion, waived their right to raise the timeliness issue on appeal. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Where there was no affirmative showing in the record on appeal that the prosecution ob- jected to the late filing of defendant’s motion for new trial prior to the time it was ruled upon by the trial court, that objection was deemed waived, and the prosecution was estopped to raise it for the first time on appeal. People v. Masamba, 39 Colo. App. 197, 563 P.2d 382 (1977). Granting of motion is in court’s discretion. Where an error is called to the court’s attention for the first time in a motion for new trial, the question of whether a new trial should be granted involves the exercise of the court’s dis- cretion. Abeyta v. People, 145 Colo. 173, 358 P.2d 12 (1960). Such as for misconduct of counsel. The question of whether a new trial should be granted for misconduct of counsel in his re- marks to the jury rests in the sound judicial discretion of the trial court. Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969). And this discretion will not be interfered with on appeal unless it manifestly appears that such discretion has been abused. Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969). But this rule includes mandatory provision that motion based on newly discovered evi- dence be supported by affidavits, and this provision is impervious to judicial discretion. People ex rel. J.P .L., 214 P.3d 1072 (Colo. App. 2009). The standard by which to judge a court’s grant of a new trial under this rule is whether the court abused its discretion. People v. Jones, 942 P.2d 1258 (Colo. App. 1996). Motion for new trial after trial on merits preserves errors alleged in sanity trial. A mo- tion for a new trial after trial on the merits is sufficient to preserve for appeal errors alleged in the sanity trial, because the judgment declar- ing the defendant sane is not final for appeal purposes until defendant is found guilty of the crime charged. People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979). For differing considerations governing ef- fect of time limitations in criminal cases and in civil cases, see People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). In order for a new trial to be granted on the basis of a prosecutor’s remarks, in the absence of a contemporaneous objection, they must be particularly egregious. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989). No basis in the record to conclude the jury’s review of a silent videotape during de- liberations was in any way prejudicial and the trial court therefore properly denied defendant’s motion for a mistrial or new trial on this basis. People v. Blecha, 940 P.2d 1070 (Colo. App. 1996), aff’d, 962 P.2d 931 (Colo. 1998). For purposes of section (c), ‘‘entry of judg- ment’’ includes both a verdict or finding of guilt and defendant’s sentencing. If defendant has not been sentenced, a motion filed under section (c) is timely. People v. Bueno, 2013 COA 151, 411 P.3d 53, aff’d, 2018 CO 4, 409 P.3d 320. B. Contents. Points of error must be raised with par- ticularity. This rule requires the filing of a motion for new trial in which points of error must be raised with particularity. Feldstein v. People, 159 Colo. 107, 410 P.2d 188 (1966). See Jobe v. People, 158 Colo. 571, 408 P.2d 972 (1965); Cruz v. People, 165 Colo. 495, 441 P.2d 22 (1968). Attention should be drawn specifically to the alleged objectionable rulings in a motion for a new trial, and general objections and assign- ments of error fall far short of calling to the court’s attention any specific error made in con- nection with its rulings. Losavio v. District Court, 182 Colo. 186, 512 P.2d 264 (1973). To give guidance to court. When the motion for a new trial does not set forth with particu- larity the reason that a new trial is required, a vacuum exists which leaves the trial judge with- out direction and without guidance as to how the new trial should be conducted. Losavio v. District Court, 182 Colo. 186, 512 P.2d 264 (1973). Testimony treated as substance of affida- vit. A witness’s testimony on direct examina- tion may be treated as constituting the sub- stance of the affidavit required for a new trial. Hernandez v. People, 175 Colo. 155, 486 P.2d 24 (1971). C. Based on Newly Discovered Evidence. Motion regarded with disfavor. A motion for new trial on grounds of newly discovered evidence is regarded with disfavor. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974); People v. Jones, 690 P.2d 866 (Colo. App. 1984); People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Williams, 827 P.2d 612 (Colo. App. 1992); People v. Leonard, 872 P.2d 1325 (Colo. App. 1993); People v. Graham, 876 P.2d 68 (Colo. App. 1994). A motion for new trial based on newly dis- covered evidence is generally not looked upon with great favor because to do otherwise would encourage counsel to neglect to gather all avail- able evidence for the first trial and, if unsuc- cessful, then to become diligent in securing other evidence to attempt to reverse the out- come on a second trial. People v. Mays, 186 Colo. 123, 525 P.2d 1165 (1974); People v. Scheidt, 187 Colo. 20, 528 P.2d 232 (1974). Motion addressed to court’s discretion. A motion for new trial based upon newly discov- ered evidence is addressed to the sound discre- tion of the trial court. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974). And unless an abuse of discretion is affir- matively shown, the denial of a motion for a new trial based on newly discovered evidence will not be disturbed on appeal. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974); People v. Jones, 690 P.2d 866 (Colo. App. 1984); People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Leonard, 872 P.2d 1325 (Colo. App. 1993). The denial of a motion for a new trial based upon newly discovered evidence will not be overturned unless there has been shown a clear abuse of the trial court’s discretion. People v. Scheidt, 187 Colo. 20, 528 P.2d 232 (1974). Trial court did not abuse its discretion in denying motion for new trial due to newly discovered evidence because the evidence prob- ably would not have resulted in an acquittal on retrial. People v. Leonard, 872 P.2d 1325 (Colo. App. 1993). To succeed on motion for new trial based upon newly discovered evidence, the defen- dant should show that the evidence was discov- ered after the trial; that defendant and his coun- sel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial; that the newly discovered evi- dence is material to the issues involved, and not merely cumulative or impeaching; and that on retrial the newly discovered evidence would probably produce an acquittal. People v. Scheidt, 187 Colo. 20, 528 P.2d 232 (1974); People v. Jones, 690 P.2d 866 (Colo. App. 1984); People v. Williams, 827 P.2d 612 (Colo. App. 1992); People v. Gee, 2015 COA 151, 371 P.3d 714. Showing of diligent search and inquiry is a cardinal prerequisite of a new trial based upon newly discovered evidence. Isbell v. People, 158 Colo. 126, 405 P.2d 744 (1965); Pieramico v. People, 173 Colo. 276, 478 P.2d 304 (1970); People v. Jones, 690 P.2d 866 (Colo. App. 1984). When defense was aware of the possibility that someone else committed the crime but didn’t pursue the theory and instead chose to rely on alibi witness, the motion for new trial was properly denied. People v. Stephens, 689 P.2d 666 (Colo. App. 1984). Else motion will be denied. Where the newly discovered evidence was cumulative in nature and could, with the exercise of due dili- gence, have been discovered before trial, mo- tion for new trial was properly denied. People v. Mays, 186 Colo. 123, 525 P.2d 1165 (1974). When evidence could have been discovered with reasonable diligence and the result of the trial would probably not have been changed if the evidence had been presented, the trial court properly denied the motion for a new trial. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986). Denial for motion for new trial based upon newly discovered evidence was proper where the asserted newly discovered evidence was either merely cumulative or impeaching and was neither material to the issues involved nor would it have probably produced a verdict of acquittal on retrial. People v. Williams, 827 P.2d 612 (Colo. App. 1992); People v. Graham, 876 P.2d 68 (Colo. App. 1994). Evidence must be of character to probably bring about acquittal. Newly discovered evi- dence must be of such a character as to prob- ably bring about an acquittal verdict if pre- sented at another trial. People v. Scheidt, 187 Colo. 20, 528 P.2d 232 (1974); People v. Jones, 690 P.2d 866 (Colo. App. 1984). As where codefendant is induced. Where the motion for new trial sets forth as newly discovered evidence the fact that following de- fendant’s conviction the charge against a code- fendant is dismissed, and that this casts grave doubt as to the truth of his testimony that no promise had been made to him, then the ends of justice require that the court conduct a hearing with the additional consideration of any proba- tive evidence on the question of whether there was any inducement to procure the codefen- dant’s testimony, the extent and nature thereof, if so, and then grant or deny the motion. Mitch- ell v. People, 170 Colo. 117, 459 P.2d 284 (1969). Evidence showing verdict influenced by false testimony sufficient. If newly discovered evidence is of such a character as to make it appear that the verdict was probably influenced by false or mistaken testimony and that upon another trial the result would probably, or might, be different, or even doubtful, then a new trial should be granted. Cheatwood v. People, 164 Colo. 334, 435 P.2d 402 (1967); Baker v. People, 176 Colo. 99, 489 P.2d 196 (1971); DeLuzio v. People, 177 Colo. 389, 494 P.2d 589 (1972). But cumulative evidence insufficient. Where the newly discovered evidence was cu- mulative in nature and could, with the exercise of due diligence, have been discovered before trial, and the outcome of the case on retrial would probably be the same, motion for new trial was properly denied. People v. Mays, 186 Colo. 123, 525 P.2d 1165 (1974). Evidence to discredit expert testimony in- sufficient. Newly discovered evidence that would merely tend to discredit or impeach ex- pert testimony would not be grounds for a new trial. Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972). Evidence held not newly discovered as contemplated by this rule. Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972). Evidence within the defendant’s knowledge before trial does not constitute newly discov- ered evidence as a basis for a new trial. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974). Where defendant filed a motion for a new trial based on newly discovered evidence, such evidence being that defendant was threatened with death if he testified in his own behalf and such threat was made without the knowledge of his attorney, the motion was properly denied since this was not a case of newly discovered evidence as the evidence presented consisted of facts which obviously were known to the defen- dant at the time of his trial. People v. Drumright, 189 Colo. 26, 536 P.2d 38 (1975). Magistrate did not abuse his discretion in denying motion for a new trial where movant failed to file mandatory supporting affidavits with the motion and magistrate denied motion based on this deficiency. People ex rel. J.P .L., 214 P.3d 1072 (Colo. App. 2009). A defendant who has pled guilty is not entitled to request a new trial under this rule because the defendant has been convicted not after trial but upon his or her own admissions. People v. Ambos, 51 P.3d 1070 (Colo. App. 2002). D. Based on Other Grounds. Trial court did not abuse discretion by de- nying motion for a new trial without a hearing where several hearings were set that had to be continued because of defendant’s hostility and unwillingness to cooperate with counsel. People v. Eckert, 919 P.2d 962 (Colo. App. 1996). Trial court did not err in denying defen- dant a hearing on his motion for a new trial based on ineffective assistance of counsel where defendant failed to allege any acts or omissions of defense counsel that deprived him of a defense. In the absence of particularized facts supporting defendant’s assertion of inef- fective assistance of counsel, it was within the trial court’s discretion to deny defendant a hear- ing on the motion. People v. Esquivel-Alaniz, 985 P.2d 22 (Colo. App. 1999). Motion alleging ineffective assistance of counsel was properly denied without a hear- ing. Defendant elected to raise ineffective assis- tance of counsel claim in a motion under this rule and is bound by the standards of review for that motion under this rule and not those of Crim. P. 35. Denial of a motion under this rule without a hearing is reviewed for an abuse of discretion. People v. Lopez, 2015 COA 45, 399 P.3d 129. Motion denied where defendant received fair, although not perfect, trial. Although de- fendant did not receive a perfect trial, he did receive a fair trial, and because the law of Colorado entitles him to nothing more, his mo- tion for a new trial was denied. People v. Scheidt, 182 Colo. 374, 513 P.2d 446 (1973). Fact that jury deliberates less than 45 min- utes does not warrant the granting of a new trial. People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973). Evidence which is cumulative or corrobo- rative will normally not support the granting of a motion for new trial. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974). Discovery of evidence unlikely to change verdict insufficient. A new trial is not required whenever a combing of the prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. Sandoval v. People, 180 Colo. 180, 503 P.2d 1020 (1972). New trial on basis of prosecution asking improper questions denied. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). In order to justify a new trial based on a tainted jury, the defendant must show evidence of prejudice. People v. Barger, 732 P.2d 1225 (Colo. App. 1986). Prejudice occurring during jury seques- tration. The determination of whether prejudice has occurred during jury sequestration is within the sound discretion of the trial court and only where that discretion has been abused will a new trial be ordered. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974). Presence of armed uniformed officers in courtroom insufficient. The court did not abuse its discretion in overruling defendant’s motion for a new trial where defendant asserted that the presence of two armed uniformed offi- cers in the courtroom constituted prejudicial error. People v. Romero, 182 Colo. 50, 511 P.2d 466 (1973). Phone call by juror insufficient, absent showing of prejudice. It is not error to fail to grant a new trial because a juror allegedly makes a phone call out of the bailiff’s presence, which is not shown to be prejudicial to the defendant. People v. Peery, 180 Colo. 161, 503 P.2d 350 (1972). Improper communications to jury are pre- sumptively prejudicial, especially if the com- munications deal with the punishment or sen- tencing of a defendant. People v. Cornett, 685 P.2d 224 (Colo. App. 1984). Juror misconduct. Defendant must establish the truth of the allegations on which he bases his motion for a new trial and produce evidence of the alleged juror misconduct. People v. Ste- phens, 689 P.2d 666 (Colo. App. 1984). Allegations on which motion based must be supported by evidence. Mere hearsay allega- tions in an affidavit will warrant denial of mo- tion. People v. Hernandez, 695 P.2d 308 (Colo. App. 1984). Failure to establish the truth of hearsay alle- gations contained in an affidavit will warrant denial of a motion for a new trial based on alleged juror misconduct. People v. Rogers, 706 P.2d 1288 (Colo. App. 1985). Misconduct of juror in sleeping through defense counsel’s closing argument suffi- ciently prejudiced defendant to warrant a new trial. People v. Evans, 710 P.2d 1167 (Colo. App. 1985). Untruthful answers on voir dire concern- ing material matters do not entitle a party to a new trial per se. Under some circumstances, however, a juror’s nondisclosure of information during jury selection may be grounds for a new trial. Allen v. Ramada Inn, Inc., 778 P.2d 291 (Colo. App. 1989). Only undisclosed information material to defendant’s theory of the case and which might have affected the outcome of the trial will mandate reversal. People v. Rogers, 706 P.2d 1288 (Colo. App. 1985). Jurors learning of a co-defendant’s guilty plea and capture of another co-defendant through the media insufficient absent a show- ing of prejudice. People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev’d on other grounds, 712 P.2d 1023 (Colo. 1986).