concluding that it was not improper for the prosecution to ask the jury not to be confused by defense counsel’s tactics because the comment was intended to draw the jury’s focus to relevant evidence rather than to denigrate opposing counsel
How later courts described this case
- concluding that it was not improper for the prosecution to ask the jury not to be confused by defense counsel’s tactics because the comment was intended to draw the jury’s focus to relevant evidence rather than to denigrate opposing counsel
- concluding that the prosecutor’s closing argument, which was intended to draw the jury’s focus to relevant evidence rather than to denigrate defense 20 counsel, wasn’t improper
- noting that a prosecutor may “employ rhetorical devices and engage in oratorical embellishment and metaphorical nuance, so long as [the argument] does not thereby induce the jury to determine guilt on the basis of passion or prejudice”
- finding no basis for reversal where, during closing argument, the prosecutor stated that "the case could have been a 'made for TV movie' "
Written by the judges who cited it.
The opinion
Judge ROTHENBERG
specially concurring.
I concur with the majority that the judgment should be affirmed. However, I write separately because I conclude the trial court did not err in admitting the victim's statements to the emergency room physician. Thus, I perceive no need to reach the issue of harmless error.
Section 16-10-201(1), C.R.8.2002, provides:
Where a witness in a criminal trial has made a previous statement inconsistent with his [or her] testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his [or her] testimony and the inconsistent statement relate, if [a foundation is shown].
A proper foundation is shown under the statute if the witness is available to give testimony at trial and the prior inconsistent statement "purports to relate to a matter within the witness's own knowledge." Section 16-10-201(1)(a)-(b), C.R.8.2002.
The requirement of a prior inconsistent statement is satisfied if the witness either denies or cannot recall the transaction or event in issue. See People v. Aguirre, 839 P.2d 483, 486 (Colo.App.1992); see also CRE 613(a) (permitting the admission of extrinsic evidence "[where the witness denies or does not remember" making a prior inconsistent statement, but limiting use of extrinsic evidence "to prove that the prior inconsistent statement was made").
Here, the victim testified at trial that she could not recall the events that led to the charges against defendant. Although the prosecution did not offer the victim's statements to the emergency room physician under § 16-10-201, the statements were nevertheless admissible on that basis, and I conclude the trial court did not err in admitting them. See People v. Quintana, 882 P.2d 1366, 1375 (Colo.1994)("A defendant's conviction will not be reversed if a trial court reaches the correct result although by an incorrect analysis.").