Summary
In Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972), this Court recognized that a material witness should not also function as an officer of the court.
Summary of this case from People v. SpencerOpinion
No. 23904
Decided February 22, 1972. Rehearing denied March 13, 1972.
Defendants were convicted of first-degree murder and brought error.
Affirmed
1. CRIMINAL EVIDENCE — First-Degree Murder — Motel Linen — Admissible — Corroborative — Limited Purpose — Harmless Error. In prosecution for first-degree murder, where evidence relating to motel linen was not introduced to show transaction at motel as independent criminal activity, but was used as one circumstance in a chain of circumstances to establish that defendants accompanied driver of white Mustang from Omaha to scene of crime, and where this evidence corroborated motel owner's identification of driver and connected defendants to white Mustang and also established that the three men, who were together in Omaha, were still together in Denver, held, as such, the evidence was admissible for this purpose; and although trial judge should have instructed jury as to limited purpose of this evidence, his failure to do so, under the circumstances of this case, was harmless error beyond a reasonable doubt.
2. SEARCHES AND SEIZURES — Automobile — Validity — Own Peculiar Circumstances. The validity of automobile searches, like most search and seizure problems, turn upon their own peculiar circumstances.
3. HOMICIDE — First Degree — Automobile — Left at Scene — Key Removed — Ignition — Abandonment — Person Aggrieved — Suppress — Evidence — Negative. In prosecution for first-degree murder, where automobile which brought burglars to scene of crime and in which it was their intention to effect their escape was left at scene because key had been removed from ignition by party who had positioned himself near store to prevent burglars from leaving, held, under these circumstances, there was an abandonment of the automobile by defendants and they therefore had no standing as "a person aggrieved" to suppress evidence found during search of automobile.
4. CONSTITUTIONAL LAW — Right to Privacy — Fourth Amendment — Assertion — Establish — Invasion. Concomitant with the assertion of the right to privacy under the Fourth Amendment is the requirement that the one who asserts the right must establish that he was the victim of an invasion of his privacy.
5. SEARCHES AND SEIZURES — Felony Murder — Abandonment of Car — Scene of Crime — Flight — Remaining at Large — Search — Reasonable — Investigation. In prosecution for first-degree murder, where records indicates a combination of factors namely: commission of a felony murder, abandonment of car by the suspects at the scene of the crime, their flight from the scene on foot into the night and their remaining at large, held, as such, this combination of factors leads to the conclusion that warrantless search of car by law enforcement authorities was reasonable and properly a part of the investigation.
6. CRIMINAL PROCEDURE — Jointly Charged — Right — Separate Trial — Circumstances. One who is jointly charged with a crime is entitled as of right to a separate trial only where evidence, other than reputation or character testimony, would not be admissible in a separate trial of moving defendant.
7. Severance — Grant or Denial — Discretion. The granting or denial of a severance lies within the sound discretion of the trial court.
8. Denial of Severance — Clear Abuse — Infringement — Fair Trial — Error. Where not a matter of right, the denial of a severance does not constitute error unless there is a clear abuse of discretion and the record discloses an infringement of accused's right to a fair trial.
9. CRIMINAL EVIDENCE — First Degree — Burglary — Three Defendants — Automobile-Driving Agreement — Cloth — Pants Admissible — Separate Trial — Joint Trial. In first-degree murder prosecution of three defendants involving a killing in connection with a burglary, automobile-driving agreement with names of second and third defendants upon it, bit of cloth found on fence near scene of crime, which was connected by expert testimony to second defendant's coat, and statement by sheriff that pants found in automobile fit second defendant perfectly, these, as such, would all have been admissible against first defendant in separate trial; hence, there was no prejudice as a result of the admission of such evidence in a joint trial.
10. Co-defendant — Object — History — Joint Undertaking — Negative — Motive — Another Crime — Chain of Circumstances. A co-defendant cannot object to evidence of the history of the joint undertaking, even though it involved the commission of a crime by one or more of the other co-defendants, if the history of the enterprise might throw light on the motive he or his co-defendants might have had for committing another crime, and which constitutes a chain of circumstances throwing some light on the probability of their having jointly undertaken to commit the crime charge.
11. CRIMINAL LAW — First-Degree Murder — Voir Dire — Jury — Opinions — Prejudicial — Negative — Change of Venue — Denial — Proper. In prosecution for first-degree murder, where voir dire examination disclosed that members of jury did not have impressions or opinions which would be fatally prejudicial to defendants, or either of them, held, under such circumstances court did not err in refusing to grant a motion for change of venue.
12. WITNESSES — First-Degree Murder — Sheriff — Called Court to Order — Select Jurors — Witness — Officer — Reversible Error — Negative. In prosecution for first-degree murder, where court, over defendants' objection, allowed sheriff — who was a material witness for the state — daily to take part in calling the court to order, and to select a few prospective jurors on open venire, held, although reversible error was not committed, it is better practice not to permit a material witness to function as an officer of the court.
13. CRIMINAL EVIDENCE — Death Certificate — Deletion — Phrase — Shot — Burglar — Instruction to Ignore. Although it would have been better practice to delete from coroner's death certificate — which was admitted in evidence — the phrase that the victim was "helping neighbor investigate burglary of neighbor's store and shot by one of the burglars during this investigation," nevertheless, there was no prejudice and no error; especially, where no question was raised as to fact that victim was shot by one of those burglarizing store and court instructed jury to ignore such portion of certificate.
14. Extrajudicial Identification — Permitted — Exception to Hearsay Rule — Extension — Third Person. In Colorado, extrajudicial identifications of a defendant as substantive evidence and as an exception to the hearsay rule are permitted; and this exception has been extended to extrajudicial identifications heard or observed by a third person.
15. Extrajudicial Identification — Cumulative — Harmless. Where extrajudicial identification admitted as substantive evidence was clearly cumulative, any error, in the light of other material evidence relating defendants to the crime, was harmless.
16. Search — Arrest — Two Defendants — Inconclusive — Identification — Description — Burglary — Lack of Prejudice — Contention — Deprivation — Benefits of Severance. In first-degree murder prosecution, where evidence involved was primarily a part of the story of the search for and arrest of the two defendants on trial, held, under these circumstances, in view of the inconclusive nature of identification, evidence concerning description of one or more of those who participated in burglary — as furnished by one accused to Chief of Police at scene of crime — cannot be viewed as being prejudicial to the defendants, notwithstanding contention that it was testimony of co-defendant as to when severance was granted and that there was thus deprivation of opportunity to cross-examine or of benefits of severance.
17. PROSECUTING ATTORNEYS — Defense Counsel — Improper Comment — Response. Defense counsel may by improper argumentative comment open the door to a response by the prosecuting attorney.
18. First Degree — Failure to Testify — Statement — Defense Counsel — Response — District Attorney — Prejudicial — Reversal — Negative. In prosecution for first-degree murder, where jury was properly instructed that defendant's failure to testify could not be considered as evidence of guilt or innocence, summation statement by defense counsel and response by prosecuting attorney, although beyond the bounds of proper advocacy, were not so prejudicial as to warrant reversal.
19. CRIMINAL PROCEDURE — Motion for New Trial — Newly Discovered Evidence — Appeal Pending — Jurisdiction Declined. Where motion for new trial on grounds of newly discovered evidence was filed in trial court after appeal was pending from conviction, trial court properly declined jurisdiction, and motion was not before court on review.
20. HOMICIDE — First Degree — Lesser Included Offenses — Submission — Unnecessary. Where the charge is first-degree murder occurring during the commission of a felony, lesser included offenses need not be submitted to the jury.
21. INSTRUCTIONS, CRIMINAL — Failure of Evidence — No Basis for Instruction. In homicide prosecution, where defendants presented no evidence there was no basis for an instruction on their theory of the case.
Error to the District Court of Rio Grande County, Honorable Richard E. Conour, Judge.
Epstein, Epstein and Lozow, Donald L. Lozow, Gary Lozow, for plaintiffs in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Michael T. Haley, Assistant, David A. Sorenson, Assistant, for defendant in error.
The defendants were convicted of first degree murder and sentenced to life imprisonment. The homicide was committed at about three o'clock a.m. on November 16, 1967, at South Fork, Rio Grande County, Colorado, by three men as they were making their escape from a store following an aborted burglary.
At about two-thirty o'clock a.m. the owner of the store, who regularly left the lights on in the store all night, became aware that the store was being burglarized. The owner's wife telephoned Joe Stout, a neighbor, and asked him to come to their residence. The owner's wife then proceeded to telephone the law enforcement officers in the area. While awaiting the arrival of the sheriff and other law enforcement officers, the owner and Mr. Stout proceeded to the store armed with rifles and hand guns. Their purpose was to prevent the burglars from leaving the store before the arrival of the law enforcement officials. The owner guarded the front door and Mr. Stout took up position near the rear door. A 1967 white Mustang was parked with the key in the ignition immediately adjacent to the rear door. Witnesses heard shots being fired. One witness testified that "somebody started hollering at me, they would kill me if I didn't bring them the car keys." More shots were heard. The burglars had escaped through the rear door. Mr. Stout was found dead beside the Mustang with its keys in one of his pockets.
Within 30 minutes after the shots were fired, one Twyford, charged jointly with the two defendants but severed for purposes of the trial, returned to the area in front of the store and surrendered himself to one of the officers. He acknowledged that two other individuals were involved with him in the burglary.
Kurtz and Barrientos, the defendants here, were apprehended the afternoon of the day following the murder as they were walking along the main highway between South Fork and Del Norte, the county seat. From the investigation and search the law enforcement officers were able to reconstruct the escape route of Kurtz and Barrientos. It led from the store across the south fork of the Rio Grande River, which runs along the foothills, and eventually back to the highway near where the two were arrested. Clothing, worn by the defendants, matched that described by witnesses.
The physical evidence — the condition of the ice over the river, footprints in the mud along the ditch, items taken from the store, "fuzz" from Kurtz' jacket found on a fence, coins taken from the coke machine in the store, and the keys to the murder victim's truck, all of which were found at various placed along the route — were circumstances directly connecting the defendants to the burglary and the murder committed in connection therewith.
Eyewitness descriptions and cloth fuzz found at the end of the trial leading from the scene of the crime matched a coat that Kurtz was wearing at the time of the arrest. This fact not only linked Kurtz to the crime, but also, in view of apprehension together of the two defendants in the vicinity of the crime and their bedraggled condition, it also linked Barrientos to the crime.
At the trial evidence was introduced to reconstruct the events leading up to the morning of the 16th. At trial, then, evidence was introduced to show the following:
(1) That the police in Omaha, Nebraska knew Kurtz, Twyford and Barrientos to associate with one another;
(2) That the three had been observed together on the 13th of November;
(3) That on the 14th of November the Adams Driveaway Company had put a white 1967 Mustang into the custody of Twyford in Omaha;
(4) That Twyford, driving a white Mustang, had rented a room in an Englewood motel on the morning of the 15th and that three men had stayed in the motel;
(5) That fingerprints of the defendants and Twyford were in the interior of the Mustang.
As to this chain of events, its relevancy and materiality, appellants make no assignment of error. Further, this chain of circumstances, when coupled with other facts ( e.g., eyewitness' descriptions of the burglars' apparel) and considered in the light most favorable to the prosecution, constitutes sufficient evidence to withstand defendants' motion for acquittal.
I.
As to the evidence taken from the Englewood motel room, appellants urge fatal error. The record shows that the motel owner testified directly to the effect that a man, positively identified as Twyford, rented a room at ten o'clock in the morning of the 15th, that this man was driving a white Mustang, and that, although the registrant rented a room for two persons, three beds had been used when the owner went to examine the room at nine o'clock in the evening. Further, the motel owner identified a pillow and pillowcase, removed from the Mustang after seizure at the scene of the crime, as being those which had been supplied by the motel.
The trial judge, although he stated that he would instruct the jury as to the limited purpose for which these exhibits were admitted, failed to do so. Appellants urge this as error, relying on Stull v. People, 140 Colo. 278, 344 P.2d 455, as a statement of mandatory procedure controlling the use of "other crimes" evidence.
". . .First, the prosecutor should advise the trial court of the purpose for which he offers the evidence. Secondly, if the court admits such evidence, it should then and there instruct the jury as to the limited purpose for which the evidence is being received and for which the jury may consider it. Thirdly, the general charge should contain a renewal of the instruction on the limited purpose of such evidence. Lastly, the offer of the prosecutor and the instructions of the court should be in carefully couched terms: they should refer to 'other transactions,' 'other acts,' or 'other conduct,' and should eschew such designations as 'similar offenses,' 'other offenses,' 'similar crimes,' and so forth. . . ."
The Stull doctrine, which we reaffirm, is premised on the proposition that a defendant should not be tried for a crime wholly independent of the offense for which he is on trial. In the Stull opinion this court in commenting on this point said: "And a presumption of guilt should not be generated against an accused by showing that he committed a crime indicative that he is a depraved person who likely would commit the crime for which he is being tried. . . ."
Here, the evidence relating to the motel linen was not introduced to show the transaction at the motel as independent criminal activity, but was used as one circumstances in a chain of circumstances to establish that the defendants accompanied Twyford from Omaha to the scene of the crime charged.
This evidence corroborated the motel owner's identification of Twyford and connected the defendants to the white Mustang and also established that the three men, who were together in Omaha, were still together in Denver, and was admissible for this purpose.
It would be wholly unrealistic to believe that a jury would be so naive as to convict persons of murder on the basis of evidence that a pillow taken from a motel room was found in the car in which they had travelled to the scene of the crime.
Although the trial judge should have instructed the jury as to the limited purpose of this evidence, his failure to do so under the circumstances of this case, considering the petty nature of the offense as compared with the gravity of the charge against the defendants, was harmless error beyond a reasonable doubt.
II.
The error primarily relied upon by the defendant for reversal relates to the admission in evidence, over objection, of all exhibits seized in a search of the white Mustang automobile. At the time of the seizure the defendants had not been apprehended.
Although the sheriff obtained a search warrant authorizing the search of the Mustang, the Attorney General concedes that the affidavit upon which the validity of the warrant depends was insufficient. There can be no argument on this score. The affidavit does not contain a single recitation of an underlying fact. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.ed.2d 723.
If the search of the automobile and the seizure of the articles found therein are to withstand the constitutional assault of the defendants, their validity must stand as a warrantless search.
The validity of automobile searches, like most search and seizure problems, turn upon their own peculiar circumstances. Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. Cowdin v. People, 176 Colo. 466, 491 P.2d 569. Our examination of the facts in this case leads us to the conclusion that the defendants' attack must fail.
As indicated in the statement of facts, the Mustang figures prominently in the drama of the tragedy that is this case. It was parked at the back door of the Foothills Market with the keys in the ignition. The car carried Nebraska license plates. Mr. Stout had positioned himself near the back door to prevent the burglars from leaving the store, and had removed the key from the ignition. Also, others in the vicinity at the time of the shooting heard someone threaten to kill the party who had the key to the car unless it was handed over.
It clearly appears that the car brought the burglars to the scene of the crime and that it was the intention of the burglars to use it to effect their escape. The sheriff thus had probable cause to believe that the car was involved in the crime. A careful and competent police officer in the conduct of an investigation, given the facts of this case, could reasonably expect to find fingerprints of those who arrived at the store either on the vehicle itself or on its contents.
There is a compelling reason to uphold the validity of the search of the automobile under the circumstances of this case. The defendants had abandoned the Mustang. They, therefore, had no standing to suppress the evidence as "a person aggrieved." Colo. Crim. P. 41(e).
We recognize the public interest in affording maximum protection to the right of privacy protected by the Fourth Amendment. Concomitant with the assertion of the right to privacy is the requirement that the one who asserts the right must establish that he was the victim of an invasion of his privacy. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.
In Thom v. State, 248 Ark. 180, 450 S.W.2d 550, the Arkansas Supreme Court had a Fourth Amendment problem factually comparable to the instant
case. The analysis by Mr. Justice Byrd is the most graphic exposition of the applicable principle we have seen. We quote:
". . . Sometimes an automobile takes on the characteristics of a man's castle. Other times an automobile takes on the characteristic of an overcoat that is, it is movable and can be discarded by the possessor at will. If appellant in his endeavors to avoid the clutches of the law had discarded his overcoat to make his flight more speedy, no one would think that an officer was unreasonably invading his privacy or security in picking up the overcoat and searching it thoroughly. In that situation most people would agree that the fleeing suspect had abandoned his coat as a matter of expediency as well as any rights relative to its search and seizure. What difference can there be when a fleeing burglar abandons his automobile to escape the clutches of the law? We can see no distinction and consequently hold that when property is abandoned officers in making a search thereof do not violate any rights or security of a citizen guaranteed under the Fourth Amendment."
The rationale of Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, supports the abandonment doctrine. There, the defendant, at the insistence of immigration officers, checked out of his hotel room. After he had done so, but before the regular check out hour, an FBI agent, with the consent of the hotel management, searched the room and seized articles left there by the defendant. The court said (Id. at 241, 80 S.Ct. at 698):
". . .it was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. Nor was it unlawful to seize the entire contents of the waste basket, even though some of its contends had no connection with crime. So far as the record shows, petitioner had abandoned these articles. He had thrown them away. So far as he was concerned, they were bona vacantia. There can be nothing unlawful in the government's appropriation of such abandoned property. . . ."
See Feguer v. United States, 302 F.2d 214, and cases cited therein. (Opinion by Blackmun, J.) See also United States v. Edwards, 441 F.2d 749, involving the abandonment of a car.
In United States v. Polk, 433 F.2d 644, Wisdom, J., said:
"The rationale for this holding is that an automobile owner can have no reasonable expectation of privacy with respect to the car's [vehicle identification number],. . . ."
See Feguer v. United States, 302 F.2d 214, and cases cited therein. (Opinion by Blackmun, J.) See also United States v. Edwards, 441 F.2d 749, involving the abandonment of a car.
In United States v. Polk, 433 F.2d 644, Wisdom, J., said:
"The rationale for this holding is that an automobile owner can have no reasonable expectation of privacy with respect to the car's [vehicle identification number],. . . ."
The defendants here, when they fled, manifested an intent to abandon whatever expectation of privacy they may have had. The record is clear on this point.
In Parman v. United States, 399 F.2d 559, cert. denied, 393 U.S. 858, 89 S.Ct. 109, 21 L.Ed.2d 126, the court held that the defendant had no constitutional right to protest the legality of a search of an apartment that he had abandoned. In answer to the argument that this holding encroached upon the deterrence rationale of the Fourth Amendment, Judge (now Chief Justice) Burger noted that the exclusionary rule does not apply to third persons, and said:
". . . We see no reason for treating a person who abandons property before the search any differently from a third party."
Viewing the facts of this case in the light of precedent, the record discloses a combination of factors which lead to the conclusion that the search was reasonable: Commission of the felony murder; the abandonment of the car by the suspects at the scene of the crime; their flight from the scene on foot into the night and their remaining at large.
As noted above, the search of the car was properly a part of the investigation.
III.
[6,8] Defendant Barrientos claims error in the denial of his motion for severance from the defendant Kurtz. One who is jointly charged with a crime is entitled as of right to a separate trial only where evidence, other than reputation or character testimony, would not be admissible in a separate trial of the moving defendant. Colo. R. Crim. P. 14. The granting or denial of a severance lies within the sound discretion of the trial court. Where not a matter of right, the denial of a severance does not constitute error unless there is a clear abuse of discretion and the record discloses an infringement of accused's right to a fair trial. Mukuri v. People, 92 Colo. 306, 19 P.2d 1040; Kolkman v. People, 89 Colo. 8, 300 P. 575; Flor v. People, 73 Colo. 403, 215 P. 875.
At trial, there was introduced the following evidence, which Barrientos claims was admissible only against Kurtz and, therefore, in violation of the above rule: first, the car driving agreement with only the names of Kurtz and Twyford on it; second, a bit of cloth found on a fence near the scene of the crime, which was connected by expert testimony to Kurtz' coat; third, a statement by Sheriff Robran that pants found in the Mustang fit Kurtz perfectly; fourth a telephonic statement of Kurtz to his lawyer which was overheard by the sheriff, "I want to take the sheriff to South Fork and show him the .22 pistol." As to the last item a limiting instruction was given. As to all of the evidence, except the telephonic statement of Kurtz to his lawyer, there is no question but what these would be admissible against Barrientos in a separate trial. Consequently, there has been no prejudice as a result of the admission of that evidence.
The statement of Kurtz to his lawyer which was overheard by the sheriff was not admissible against Barrientos and it would have been better trial procedure not to have admitted the statement in evidence. However, the court gave a limiting instruction and in view of the overwhelming evidence of Barrientos' involvement in the burglary, the admission of this evidence does not constitute reversible error.
In Smaldone, we held that a co-defendant cannot object to evidence of the history of the joint undertaking, even though it involved the commission of a crime by one or more of the other co-defendants, if the history of the enterprise might throw light on the motive he or his co-defendants might have had for committing another crime, and which constitutes a chain of circumstances throwing some light on the probability of their having jointly undertaken to commit the crime charged.
Here, the evidence to which objection was made were links in a chain of evidence connecting each of the defendants with the joint undertaking which resulted in the commission of the crime with which the defendants were jointly charged.
IV.
The defendants assert error in the failure of the court to grant a motion for change of venue. We have studied the voir dire examination of the jury and affidavits submitted to the court. Just as was the case in Small v. People, 173 Colo. 304, 479 P.2d 386, there was not present here the extensive and pervasive publicity as found in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed. 600; and Walker v. People, 169 Colo. 467, 458 P.2d 238. The voir dire examination disclosed that the members of the jury did not have impressions or opinions which would be fatally prejudicial to the defendants or either of them. See Colo. R. Crim. P. 24(a)(vi).
"The fact that several jurors, or all the members of the panel, have read newspaper articles relating to a case does not disqualify them as jurors. This is true even though a juror may have had a pre-conceived notion as to the guilt or innocence of an accused. 'It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'" Evans v. Arizona, 410 F.2d 1122 (1969).
V.
The court, over defendants' objection, allowed the sheriff, who was a material witness for the People, daily to take part in calling the court to order, and to select a few prospective jurors on open venire. The court also refused to give an instruction to the effect that no particular weight was to be attached to the sheriff's testimony by reason of his court functions. Defendants contend that the jury would be inclined to give undue emphasis to the sheriff's testimony since he was acting as an officer of the court in the presence of the jury. So far as we have been able to glean from the record, which incidentally consists of 5,044 folios, he was not placed in charge of the jury at any time. The matter here does not come within the scope of Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, cited by the defendants. There, the deputy sheriffs, who were material witnesses, spent a considerable amount of time in charge of the jury when it was out of the courtroom. We think that reversible error was not committed here, but believe that it is better practice not to permit a material witness to function as an officer of the court.
VI.
Error is claimed by the failure to delete from the coroner's death certificate, which was admitted in evidence, the phrase that the victim was "helping neighbor investigate burglary of neighbor's store and shot by one of the burglars during this investigation." No question was raised as to the fact that the victim was shot by one of those burglarizing the store. As a consequence, we do not regard the admission of the death certificate containing the above quoted statement as reversible error, particularly when the court later instructed the jury to ignore that portion of the certificate. It would be much better practice to delete included hearsay. However, as there was no prejudice, there is no error. Gallegos v. People, 157 Colo. 484, 403 P.2d 864; Allison v. People, 109 Colo. 295, 125 P.2d 146; Granato v. People, 97 Colo. 303, 49 P.2d 431.
VII.
Barney Black, Chief of Police at Del Norte, who arrived on the scene shortly after the aborted burglary, testified for the state that Mr. Twyford was placed in this custody and that pursuant to conversations with Mr. Twyford, he radioed a description to the Alamosa dispatcher in order to aid in the arrest. The appellants urged that this testimony, along with testimony as to the substance of the description sent out by Chief Black, constituted error (1) because it was inadmissible hearsay and (2) because it was testimony of a co-defendant as to whom the severance had been granted (and that it thus operated so as either to deprive defendants of an opportunity to cross-examine or to require a waiver of the benefits of a severance to which they were entitled).
[14,15] The defendants' first objection has no merit. This jurisdiction permits extrajudicial identifications of a defendant as substantive evidence and as an exception has been extended to extrajudicial identifications heard or observed by a third person. Cokley v. People, 168 Colo. 52, 449 P.2d 824; Gallegos v. People, supra. Finally, even if this were inadmissible hearsay, we hold that in light of the other material evidence relating defendants to the crime, this identification was clearly cumulative and any error was harmless. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.
As to defendants' arguments concerning the effect of this evidence on the severance, we hold that there was no prejudice. First, we note that the description as given by Twyford to Chief Black was a very general description which Chief Black conceded did not accurately describe Kurtz. Further, there was some suggestion that the description as given did not describe Barrientos. As a matter of fact, the testimony of Chief Black, which was attributed to Twyford, did not purport to specifically identify either Kurtz or Barrientos, rather it related to the sex, nationality, approximate ages, height and weight for those who participated in the burglary with Twyford. In Cokley and Gallegos, the circumstances in relation to the hearsay testimony was similar to that in the instant case. In both of those cases we approved of the trial court's admission of the testimony. The evidence here was primarily a part of the story of the search for and arrest of the two defendants on trial. In view of the inconclusive nature of the identification, it cannot be said that there was any prejudice to the defendants from the admission of this evidence. Although it would clearly be a better procedure to conceal the source of the extrajudicial identifications in the instant case, we find no basis for reversal.
VIII.
[17,18] Kurtz' counsel stated in summation that Kurtz "stood by and came into this courtroom and told you he was not guilty." During rebuttal the district attorney responded as follows: "I was intrigued by the statement [by Kurtz' counsel] 'I haven't heard a word from Kurtz and you haven't heard a word on the jury. There wasn't one word that has been said.'" The appellants assert that this was a prejudicial comment on defendant's failure to testify. Though we believe that both counsel stepped beyond the bounds of proper advocacy, we do not find that the prejudice in this case warrants a reversal.
First, the trial court properly instructed the jury that the defendant's failure to testify could not be considered as evidence of guilt or innocence. Second, it is generally accepted that defense counsel may by improper argumentative comment open the door to a response by the prosecuting attorney. Hafer v. People, 177 Colo. 52, 492 P.2d 847; Kelly v. People, 121 Colo. 243, 215 P.2d 336; Fries v. People, 80 Colo. 430, 252 P. 341; Goodfellow v. People, 75 Colo. 243, 224 P. 1051.
IX.
On December 4, 1968, while defendants' appeal was pending in this court, defendants filed a motion for new trial on grounds of newly discovered evidence. Crim. P. 33 provides in part:
". . .If a review is pending, the court may grant the motion [for new trial] only on remand of the case."
Accordingly, the trial court properly declined jurisdiction and that motion is not before us. If subsequent to announcement of this opinion, defendants wish to pursue the newly discovered evidence before the trial court, there will be ample time for this court to consider the ruling on that motion on review.
X.
The defendants contend that the court erred in not submitting second-degree murder, voluntary manslaughter, involuntary manslaughter, first-degree burglary and accessory after the fact to murder as lesser included offenses. The charge here is first degree murder occurring during the commission of a felony. In such instances lesser included offenses need not be submitted to the jury. Whitman v. People, 161 Colo. 110, 420 P.2d 416.
XI.
Defendants claim that their tendered instruction on their theory of the case should have been given, citing Payne v. People, 110 Colo. 236, 132 P.2d 441. On the contrary, they presented no evidence. Therefore, there was no basis for an instruction on their theory of the case.
XII.
We find the remaining assignments of error without merit.
Judgment affirmed.
MR. JUSTICE DAY, MR. JUSTICE GROVES, and MR. JUSTICE ERICKSON dissenting.