Decided February 22, 1972.
Defendant was convicted of possession of a narcotic drug, cannabis, and brought error.
1. CRIMINAL PROCEDURE — Failure to Object — Instruction — Contemporaneous Objection Rule — Not Followed — Affirmance — Previous Approval. Where no objection was made to trial court's instruction at time of trial, and claimed error that court improperly instructed jury on law of circumstantial evidence was first raised in defendant's motion for a new trial, which was denied by court, under these circumstances, reviewing court would not only be justified in affirming defendant's conviction for the single procedural reason that the contemporaneous objection rule was not followed, but for the additional reason that it had substantively approved this instruction in a previous case where the identical instruction was given by the trial court.
2. INSTRUCTION, CRIMINAL — Duty of Counsel — Object — Erroneous Instructions — Raise — First Time — Motion for New Trial — Preclusion. Under Rule 30 of the Colorado Rules of Criminal Procedure, counsel has a duty to assist the court by objecting to erroneous instructions and tendering correct instructions; and failure to comply with the rule will ordinarily result in his being precluded from raising an objection for the first time on motion for new trial.
Error to the District Court of the City and County of Denver, Honorable Gerald E. McAuliffe, Judge.
Rollie R. Rogers State Public Defender, J. D. MacFarlane, Chief Deputy, Michael F. Morrissey, for plaintiff in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Michael T. Haley, Assistant, Tennyson W. Grebenar, Assistant, for defendant in error.
Eugene E. Arellano was convicted by a jury in Denver district court of possession of a narcotic drug, cannabis. He seeks reversal of the judgment of conviction on the sole ground that the trial court improperly instructed the jury on the law of circumstantial evidence. We affirm.
Arellano argues that the People's evidence was primarily circumstantial in nature and, if the jury was improperly instructed, the judgment must be reversed. He contends the instruction failed to plainly and accurately state the law and was so unclear as to confuse the jury rather than guide the jury in its deliberation.
[1,2] No objection was made to the court's instruction at the time of trial and the claimed error was first raised in defendant's motion for a new trial, which was denied by the court. Under these circumstances, we would here be justified in affirming for the single procedural reason that the contemporaneous objection rule was not followed by Arellano. Brown v. People, 158 Colo. 561, 408 P.2d 981. Counsel has a duty under Rule 30 of the Colorado Rules of Criminal Procedure to assist the court by objecting to erroneous instructions and tendering correct instructions. Failure to comply will ordinarily result in his being precluded from raising an objection for the first time on motion for new trial. See Morehead v. People, 167 Colo. 287, 447 P.2d 215, and cases cited therein. Additionally, however, we note this Court substantively approved the circumstantial evidence instruction here given in Pieramico v. People, 173 Colo. 276, 478 P.2d 304, where the identical instruction was given by the trial court.
The judgment is affirmed.
MR. JUSTICE DAY, MR. JUSTICE HODGES and MR. JUSTICE KELLEY concur.