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People v. Tallwhiteman3/10/2005
JUDGMENT AND SENTENCE AFFIRMED IN PART, VACATED IN PART
Marquez and Carparelli, JJ., concur
Opinion Modified, and As Modified, Petition for Rehearing
DENIED
OPINION is modified as follows:
Beginning at Page 3, line 16 currently reads:
The trial court read the stipulation into the record after a police officer testified about defendant's blood alcohol content (BAC). That testimony established that defendant's blood serum test referred to in the stipulation translated into a BAC of .23 when taken and .25 during the crime.
Jury instruction 13 stated: "The parties have agreed as to the existence of certain facts. You may regard those facts as proven." During deliberations, the jury asked in regard to instruction 13, "Judge, what are these facts?" Defendant requested the stipulation be re-read and likened it to admitted documentary evidence, such as a tape recording, which, under C.R.C.P. 47(m), may be taken into the jury room. The prosecution objected because the stipulation referred only to the blood serum level, not the BAC, and thus could be misleading to the jury and place undue emphasis on defendant's blood serum level.
Because the stipulation had been read into the record following the officer's testimony, the trial court ruled that the stipulation was more like testimony in a transcript than a tape recording. The parties had earlier agreed that jurors must rely on their collective memory regarding testimony and that transcripts would not be re-read to the jury. Thus, the court replied to the jury, "[Instruction 13] refers to the stipulation of the parties read to you during the trial. As to the facts contained in that stipulation, you must rely on your collective memory."
Here, the trial court considered the potential confusion and undue weight that might be given to the blood serum level if the stipulation were re-read to the jury without the officer's testimony about defendant's legal BAC number. See Settle v. People, supra (it is an abuse of discretion for the trial court to fail to consider whether the requested testimony might be given undue weight or emphasis by the jury). Moreover, the parties had agreed that jurors would be instructed to rely on their collective memory regarding trial testimony.
Opinion is modified to read:
The trial court read the stipulation into the record after a police officer testified about blood alcohol content (BAC) of persons who are pulled over for driving under the influence . Later testimony by a forensic chemist and toxicologist indicated that the serum test referred to in the stipulation translated into a BAC of between .23 and .25.
Jury instruction 13 stated: "The parties have agreed as to the existence of certain facts. You may regard those facts as proven." During deliberations, the jury asked in regard to instruction 13, "Judge, what are these facts?" Defendant requested the stipulation be re-read and likened it to admitted documentary evidence, such as a tape recording, which, under C.R.C.P. 47(m), may be taken into the jury room. The prosecution objected because the stipulation referred only to the blood serum level, not the BAC, and thus could be misleading to the jury and place undue emphasis on defendant's blood serum level.
The trial court ruled that the stipulation was more like testimony in a transcript than a tape recording. Earlier, when the jurors requested that the court re-read the transcript of three witnesses, the parties agreed that the jurors must rely on their collective memory regarding testimony and that those transcripts would not be re-read to the jury. The court appli
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