Volume 195 — Colorado Reports

1. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Tortious Operation of Motor Vehicle — Police —</italic><italic>Fire — Health — Liability — Damages</italic>. Section 13-10-1, C.R.S. 1973, provides that when a person is injured by the tortious operation of a motor vehicle by a police, fire, or health department employee engaged in the line of duty, the public entity and the motor vehicle driver shall be<page_number>Page 28</page_number> liable; and such liability is limited under section 13-10-2 to $10,000 per person for bodily injury and $5,000 per accident for property damage. 2. <italic>Denver — Home-Rule City — Local — Supersede — Conflicting State</italic><italic>Statutes</italic>. City and County of Denver is a home-rule city, and in matters of purely local and municipal concern it can legislatively supersede conflicting state statutes. 3. <bold>STATES</bold> — <italic>Exclusive Concern — Supersede — Conflicting Local Enactments</italic>. In matters of exclusively statewide concern state statutes will always supersede conflicting local enactments. 4. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Governmental Immunity — Police Officers —</italic><italic>Statewide and Local</italic>. Governmental immunity for tortious acts of municipal police officers is a matter of <italic>both</italic> statewide and local concern. 5. <bold>STATES</bold> — <italic>Tort Abrogation Immunity — Motor Vehicles — Municipality —</italic><italic>Compensation — Tortious Acts — Police Officers</italic>. The state has a legitimate concern in the uniform application of the abrogation of tort immunity of state, county, municipal, or quasi-municipal police, fire, or health department personnel for their tortious operation of motor vehicles; yet, each municipality also has a valid interest in ensuring that adequate compensation is awarded to persons injured by the tortious acts of the municipality's police officers. 6. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Local and Statewide — Home-Rule Charter</italic><italic>Provision — State Statute — Coexist — Conflict</italic>. If a subject matter is of both local and statewide concern, then a home-rule charter provision or ordinance and a state statute may coexist if they do not conflict; however, if state and local enactments do conflict, then the state statute would supersede the home-rule charter provision. 7. <italic>Statute — Limitation — Tortious Acts — Police Officer — Denver</italic><italic>Charter — Controlled — No Limit — Recovery</italic>. Although C.R.S. 1963, 13-10-2 puts a $10,000 limitation on recovery against a municipality for tortious acts of its police, the Denver charter puts no limit on the liability of Denver for police torts; and since there is no conflict between the statute and the charter provisions, the charter provision controlled; thus, the $10,000 limit of the statute did not apply to action against city and police officer brought by motorist who sustained injuries when her automobile collided with police patrol car. 8. <bold>INTEREST</bold> — <italic>Judgment — Police Officer — Intersection Collision — Police</italic><italic>Patrol Car — Proper</italic>. In action for damages against city and police officer arising out of an intersection collision between a Denver police patrol car and an automobile driven by plaintiff, under section <cross_reference>13-21-101</cross_reference>, C.R.S. 1963, plaintiff is entitled to claim interest on her judgment against the officer. 9. <bold>APPEAL AND ERROR</bold> — <italic>Motorist — City and Police Officer — Second Appeal —</italic><italic>Limit — Maximum Recovery — Proper</italic>. In action brought by motorist against city and police officer to recover for injuries sustained when motorist's automobile collided with police patrol car, where such action first resulted in judgment for defendants which was reversed and remanded on appeal by motorist, <italic>held</italic>, under the circumstances, motorist was not — on<page_number>Page 29</page_number> second appeal by defendants — precluded from raising issue of limit on maximum recovery for personal injuries for reason that motorist did not raise that issue in first appeal.

1. <bold>EXECUTORS AND ADMINISTRATORS</bold> — <italic>Claim — Estate of Decedent — Personal</italic><italic>Representative — Statute</italic>. Under section <cross_reference>15-12-104</cross_reference>, C.R.S. 1973, a claim against the estate of a decedent cannot be commenced or enforced until a personal representative has been appointed for the estate. 2. <italic>Nonresident Decedent — Personal Representative — Property — Located</italic><italic>in Colorado</italic>. In case of nonresident decedents, under section<cross_reference>15-10-301</cross_reference>(1)(b), C.R.S. 1973, personal representatives may be appointed only when there is property of the nonresident decedent located in Colorado. 3. <bold>INDEMNITY</bold> — <italic>Potential Right — Liability Insurance Policy — Personal</italic><italic>Property — Probate Code</italic>. A decedent's potential right of indemnity under a liability insurance policy is personal property encompassed within the comprehensive meaning of "property" as defined in the Colorado Probate Code, (section <cross_reference>15-10-201</cross_reference>(36), C.R.S. 1973), which provides that: "Property includes both real and personal property or any interest therein and means anything that may be the subject of ownership." 4. <italic>Potential Right — Liability Insurance Policy — Contingent Contract</italic><italic>Right — Vests — Judgment</italic>. A potential right of indemnity under a liability insurance policy is a contingent contract right which vests when a liability claim against the insured ripens into judgment. 5. <bold>EXECUTORS AND ADMINISTRATORS</bold> — <italic>Indemnity — Property — Insurance Policy</italic>. The right of indemnity under a liability insurance policy is property justifying the grant of administration. 6. <bold>INDEMNITY</bold> — <italic>Potential Right — Personal Property</italic>. Colorado adopts the general rule that a potential right of indemnity is personal property in the ownership of which the decedent has a right to be protected by law.<page_number>Page 286</page_number> 7. <italic>Potential Right — Liability Insurance Policy — Sufficient — Letters</italic><italic>of Administration — Nonresident — Carrier — Business in Colorado — Wheat v.</italic><italic>Fidelity Co. — Overruled</italic>. A potential right of indemnity under a liability insurance policy is sufficient personal property to support letters of administration for a nonresident when the insurance carrier is authorized to transact business in Colorado; the case of <italic>Wheat v. Fidelity Co</italic>.,<cross_reference>128 Colo. 236</cross_reference>, <cross_reference>261 P.2d 493</cross_reference>, is overruled insofar as the views therein expressed are contrary to supreme court's instant opinion. 8. <bold>DEATH</bold> — <italic>Wrongful — Nebraska Resident — Auto Liability Policy —</italic><italic>Insurance Company — Authorized — Business — Colorado</italic>. Colorado court had subject matter jurisdiction of an action for wrongful death brought against Nebraska resident whose only asset that could be subject to Colorado administration was an automobile liability policy issued in Nebraska through an insurance company authorized to transact business in Colorado.

1. <bold>ARREST</bold> — <italic>Probable Cause — Exigent Circumstances — Excuse — Warrant</italic>. Only probable cause and exigent circumstances serve to excuse the statutory warrant requirement for an arrest. 2. <italic>Police Action — Essential — Warrant — Statute — Gives Way — Public</italic><italic>Security — Opportunity — Obtain</italic>. When immediate police action is essential to protect the public safety, the warrant preference expressed by section<cross_reference>16-3-102</cross_reference>(1)(c) must, and does give way to the public security; but when an adequate opportunity to obtain an arrest warrant exists, the police, by the terms of the statute, must obtain an arrest warrant. 3. <italic>Warrantless — Exigent Circumstances — Factors — Totality of</italic><italic>Circumstances</italic>. Exigent circumstances, justifying a warrantless arrest, are established by the character of the investigation, the time of the arrest, the violent nature of the crimes, and the potential danger to the public; and while all of these factors are relevant, no factor alone is conclusive, hence, the totality of the circumstances must be examined. 4. <italic>Warrantless — Exigent Circumstances — Negative</italic>. Where prior to arrest of defendant, for one and one-half hours, seven police officers kept the defendant's apartment under surveillance, and where no explanation for the police failure to have one of the officers seek to obtain an arrest warrant during the course of the surveillance was offered, <italic>held</italic>, under these circumstances, there were no exigent circumstances justifying a warrantless arrest. 5. <italic>Warrant Requirement — Violation — Remedy — Exclusion of Evidence —</italic><italic>Fruit of Poisonous Tree</italic>. The remedy for the violation of the arrest warrant requirement is the exclusion of evidence seized which is tainted as fruit of the poisonous tree. 6. <italic>Illegal — Evidence — Subsequent — Need Not Be Suppressed — Taint —</italic><italic>Purged</italic>. Evidence obtained subsequent to an illegal arrest need not be suppressed, if the taint of the official misconduct has been purged. 7. <bold>CRIMINAL EVIDENCE</bold> — <italic>Statement — Hair Sample — Admissible — Warrantless</italic><italic>Arrest — Probable Cause — Waiver</italic>. Where record reveals that: defendant's statement was made and hair sample obtained the day after the illegal<page_number>Page 310</page_number> arrest; the warrantless arrest was not made for the purpose of discovering evidence; probable cause existed prior to the arrest; and that defendant agreed to waive his constitutional rights in writing and voluntarily provided hair sample at officer's request, <italic>held</italic>, under these circumstances, defendant's statement and hair sample were properly held to be admissible. 8. <italic>Other Crimes — Inadmissible — Exception — Proof — Plan — Scheme —</italic><italic>Design — Intent</italic>. Although evidence of an accused's other crimes is inadmissible to prove guilt of the crime charged, nevertheless, this general rule is inapplicable where the purpose for which the evidence is introduced is to establish plan, scheme, design, or intent. 9. <italic>Prior Criminal Transaction — Admissible — Discretion of Court</italic>. The admissibility of evidence of prior criminal transaction is a matter within the trial court's discretion and would only be subject to review if an abuse of discretion occurred. 10. <italic>Plan — Scheme — Design — Motive — Prior Criminal Transaction —</italic><italic>Admissible</italic>. Where record established that trial court did not abuse its discretion, evidence of a prior criminal transaction was properly admitted to establish plan, scheme, design, and motive. 11. <bold>WITNESSES</bold> — <italic>Competency Statute — Impeachment — Due Process</italic>. Colorado's competency statute, section <cross_reference>13-90-101</cross_reference>, C.R.S. 1973, which permits impeachment by prior conviction, does not violate an accused's right to testify on one's own behalf; hence, criminal defendant's right to due process was not violated — on ground that exercise of his right to testify on his own behalf was chilled — when trial court ruled that prosecution would be permitted to impeach defendant with prior felony conviction.

1. <bold>PIMPING</bold> — <italic>Statute — Challenge — Constitutionality — Lack of Merit —</italic><italic>Denial of Hearing — Proper</italic>. Where defendant's motion attacked the pimping statute (section <cross_reference>18-7-206</cross_reference>, C.R.S. 1973) on the ground that the statute was facially unconstitutional, relying primarily on rulings of another district judge who had so held — which rulings have since been reversed by the supreme court — and where the motion failed to assert that any particular facts rendered the statute unconstitutional as applied to defendant, <italic>held</italic>, since only questions of law were presented to the trial court there was no need for an evidentiary hearing; hence, there was no error in considering and deciding these legal issues on the basis of the motion papers. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Equal Protection — Denial — Two Statutes —</italic><italic>Different Punishments — Identical Criminal Conduct</italic>. Equal protection of the law is denied when two or more statutes provide different punishments for identical criminal conduct; however, it is only where the <italic>same</italic> criminal conduct is proscribed in both statutes that the equal protection principle becomes applicable. 3. <bold>PIMPING</bold> — <italic>Pandering — Different Types of Criminal Conduct — Different</italic><italic>Punishment — Equal Protection — Denial — Negative</italic>. Pimping statute (section <cross_reference>18-7-206</cross_reference>, C.R.S. 1973) and pandering statute (section<cross_reference>18-7-203</cross_reference>(1)(b), C.R.S. 1973) proscribe different types of criminal conduct; and since the two crimes are distinguishable, the General Assembly was free to prescribe different punishments for conduct it may have rationally perceived to have different degrees of social reprehensibility; hence, the pimping statute does not violate equal protection by providing different punishment for its violation. 4. <italic>Statute — Vague and Overbroad — Lack of Merit — Disposition —</italic><italic>People v. Stage</italic>. As for the arguments that the pimping statute (section<cross_reference>18-7-206</cross_reference>, C.R.S. 1973) is unconstitutionally vague and overbroad, infringes on First Amendment rights of association, and punishes mere status rather than conduct, <italic>held</italic>, these arguments have heretofore been addressed and rejected in <italic>People v. Stage</italic>, <cross_reference>195 Colo. 110</cross_reference>, <cross_reference>575 P.2d 423</cross_reference> (1978).<page_number>Page 351</page_number>

1. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Opening Statement — Waiver — Discretion</italic>. The prosecution is not required to make an opening statement in Colorado; the district attorney, in his discretion may waive opening statement. 2. <bold>TRIAL</bold> — <italic>Opening Statement — Purpose</italic>. The primary purpose of an opening statement is to provide the trial jury, in brief, outline form and without argument, a preview of what counsel expects to show by the evidence he intends to present. 3. <italic>Opening Statement — Rigid Requirements — Negative</italic>. The supreme court has never imposed rigid requirements on the content of an opening statement in a criminal case. 4. <bold>PROSTITUTION</bold> — <italic>Opening Statement — District Attorney — Adequate</italic>. Where district attorney in his opening statement apprised the jurors of the evidence he expected to present in prosecution for pimping, including testimony by a prostitute regarding her relationship with defendant, his spending habits, his lack of other significant sources of income, and his having accepted money she had earned as a prostitute, <italic>held</italic>, this opening statement, while perhaps not perfect, was clearly adequate to inform the jury of the prosecution's intent to prove that defendant was supported, at least in part, by earnings from prostitution; the motion to dismiss was therefore properly denied. 5. <bold>CRIMINAL PROCEDURE</bold> — <italic>Motion for Acquittal</italic>. On a motion for acquittal, the issue before the trial judge is whether the evidence, viewed as a whole and in a light most favorable to the prosecution, is sufficient to support a conclusion by reasonable minds that the defendant is guilty of the charge beyond a reasonable doubt. 6. <bold>PIMPING</bold> — <italic>Evidence — Sufficient — Guilt — Statute</italic>. In prosecution for violation of the pimping statute (section <cross_reference>18-7-206</cross_reference>, C.R.S. 1973), where the prosecution presented evidence that a prostitute had given all her earnings for a certain time period to defendant, and that the defendant's other sources of income were arguably insufficient to pay his living expenses, <italic>held</italic>, viewing this evidence in a light most favorable to the prosecution, it clearly supported a reasonable inference that the defendant had knowingly lived on or been supported in whole or in part by money earned through prostitution; the evidence was sufficient to support the trial court's denial of motion for acquittal and to sustain the jury's guilty verdict.<page_number>Page 391</page_number> 7. <bold>JURY</bold> — <italic>Finders of Fact — Disbelieve — Defendant's Version</italic>. The jurors, as finders of fact, are entitled, if they so choose, to disbelieve the defendant's version of the case. 8. <bold>PIMPING</bold> — <italic>Statute — Constitutional — People v. Stage</italic>. Defendant's challenge to the constitutionality of the pimping statute, section<cross_reference>18-7-206</cross_reference>, C.R.S. 1973, is without merit; his arguments have heretofore been rejected in <italic>People v. Stage</italic>, <cross_reference>195 Colo. 110</cross_reference>, <cross_reference>575 P.2d 423</cross_reference>.

1. <bold>Libel and Slander</bold> — <italic>Per Se — Presumption of Damages — Applicable —</italic><italic>Defamation — Private.</italic> The common law rule permitting presumption of damages in slander <italic>per se</italic> situations remains applicable in a suit by a private plaintiff against a nonmedia defendant where the defamation is essentially private in nature.

1. <bold>GRAND JURY</bold> — <italic>Dual Function — Probable Cause — Shielding Citizens —</italic><italic>Broad Investigatory Powers — Subpoena Evidence</italic>. Grand juries traditionally have the dual function of determining whether probable cause exists to believe that a crime has been committed and of shielding citizens from unfounded criminal prosecutions; accordingly, as a general rule, the grand jury is given broad investigatory powers and is entitled to subpoena "all evidence necessary for its deliberations." 2. <italic>Indictment — No Constitutional Guarantee</italic>. In Colorado, there is no constitutional guarantee of a grand jury indictment. 3. <italic>Limitation — Reliance on Courts — Production of Documents —</italic><italic>Attendance of Witnesses</italic>. One significant limitation upon the grand jury is that it must rely upon the Colorado courts to compel the production of documents or the attendance of witnesses. 4. <italic>Special Subpoena Powers — Negative</italic>. The grand jury is not given special subpoena powers, but rather is only permitted by Crim. P. 6.1 to subpoena "in accordance with the rules of criminal procedure and these rules." 5. <italic>Fifth Amendment Privilege — May Not Be Violated</italic>. A grand jury may not violate a person's Fifth Amendment privilege against self-incrimination by compelling him to produce books, papers, and documents which would incriminate him. 6. <italic>Invade — Fourth Amendment Rights — Prohibited</italic>. A grand jury may not invade a person's Fourth Amendment rights by attempting to compel production of documents by a subpoena that is so broad that it constitutes an unreasonable search and seizure.<page_number>Page 534</page_number> 7. <italic>Production of Documents — Protected — Testimonial Privileges</italic>. A grand jury may not compel the production of documents that are protected by Colorado testimonial privileges. 8. <italic>Subpoena Duces Tecum — Invasion — Privilege — Quashed by Court</italic>. If a grand jury subpoena <italic>duces tecum</italic> does invade a constitutional right or a testimonial privilege the court may quash it. 9. <italic>Court — Decide — Compliance — Subpoena Duces Tecum — Balance</italic><italic>Competing Interests</italic>. Once the trial court has determined that the grand jury is not interfering with constitutional rights or statutory privileges, it must decide whether to order compliance with the subpoena <italic>duces tecum</italic>; it thereupon must balance the competing interests of the individual in keeping his personal affairs confidential with the grand jury's right to investigate criminal activity. 10. <italic>Judge — Weigh — Competing Interests — Discretionary Authority — Not</italic><italic>Absolute</italic>. Although the trial judge is in the best position to weigh competing interests between the individual's personal affairs and the grand jury's right to investigate crime, nevertheless, his discretionary authority is not absolute. 11. <bold>TAXATION</bold> — <italic>Public Policy — Protection — Confidence — State Income Tax</italic><italic>Returns — Statutes — Court — Order — Disclosure</italic>. By virtue of section<cross_reference>39-21-113</cross_reference>(4)(a), C.R.S. 1973 (1976 Supp.), the general assembly has expressed a strong public policy of protecting the confidentiality of taxpayers' state income tax returns, and a person who makes disclosure in violation of this section is subject to criminal penalties under section<cross_reference>39-21-113</cross_reference>(6), C.R.S. 1973; nonetheless, a trial court does have the power to order disclosure of these income tax returns for use by the grand jury. 12. <bold>GRAND JURY</bold> — <italic>Subpoena Duces Tecum — Issuance — Over Signature of</italic><italic>Clerk — — Not Judicial Order</italic>. Where trial court found that the mere issuance of a grand jury subpoena <italic>duces tecum</italic> over the signature of the court clerk is <italic>not</italic> a "judicial order" or "as otherwise provided by law," it concluded correctly. 13. <italic>Subpoena Duces Tecum — Court Orders Compliance — Direction — Must</italic><italic>Produce Tax Returns</italic>. If the grand jury issues a subpoena <italic>duces tecum</italic> and the trial court orders compliance after an evidentiary hearing, then the Director of the Department of Revenue must produce the tax returns in question. 14. <bold>CONSTITUTIONAL LAW</bold> — <italic>Fifth Amendment Privilege — Business Entities —</italic><italic>Negative</italic>. The Fifth Amendment privilege may not be claimed by business entities. 15. <italic>Financial Disclosures — Tax Returns — Compelled Incriminations —</italic><italic>Negative</italic>. Financial disclosures made by individuals on income tax returns are not compelled incriminations. 16. <italic>Fifth Amendment — Income Tax — Failure to Claim — Waiver</italic>. An individual who does not claim the Fifth Amendment privilege in response to specific questions on the income tax forms waives all right to assert it.<page_number>Page 535</page_number> 17. <bold>SEARCHES AND SEIZURES</bold> — <italic>Income Tax Returns — Fourth Amendment — No</italic><italic>Protection</italic>. The Fourth Amendment's prohibition against unreasonable searches and seizures does not protect documents already in the public domain, such as income tax returns. 18. <bold>WITNESSES</bold> — <italic>Testimonial Privilege — Colorado — Protection —</italic><italic>Disclosure — — Statute — Negative</italic>. There is no Colorado testimonial privilege protecting against the disclosure of financial reportings made to the Department of Revenue comparable to the privileges for certain confidential communications made to lawyers, physicians, public accountants and certain other parties set forth in section <cross_reference>13-90-107</cross_reference>(1), C.R.S. 1973 (1976 Supp.). 19. <bold>GRAND JURY</bold> — <italic>Income Tax Returns — Compelling Need — Failure to Show —</italic><italic>Subpoena Duces Tecum — Quashed</italic>. In face of important public policy in section <cross_reference>39-21-113</cross_reference>(4) in favor of preserving the confidentiality of state income tax returns, the party seeking the income tax return, in this case the grand jury, bears the burden to show a compelling need for it, and absent a compelling need, the subpoena <italic>duces tecum</italic> should be quashed; thus, since petitioners have not demonstrated a compelling need for these income tax returns, the respondent judge properly exercised his discretion and quashed the grand jury's subpoena <italic>duces tecum</italic>. 20. <italic>Tax Returns — Failure to Demonstrate Need — Subpoena Duces Tecum —</italic><italic>Quashed</italic>. Subpoena duces tecum directed to Department of Revenue to produce income tax returns was properly quashed in light of failure of grand jury and district attorney to demonstrate compelling need for such tax returns. 21. <italic>Income Tax Violation — Investigation — Failure to Raise — Motion to</italic><italic>Quash — Stricken</italic>. Where issue of continuing investigation of possible income tax law violations was not raised by motion to quash subpoena <italic>duces</italic><italic>tecum</italic> for tax returns and was not before district court, <italic>held</italic>, under such circumstances, that portion of district court order directing district attorney and grand jury to discontinue investigation of possible income tax violation would be stricken.

1. <bold>CRIMINAL LAW</bold> — <italic>Self-Representation — Pro Se — Constitutions —</italic><italic>Guaranteed</italic>. In absence of exceptional circumstances, a person accused of crime in Colorado has a right guaranteed by the state constitution (<italic>Colo.</italic><italic>Const</italic>., Art. II, Sec. 16) to represent himself; moreover, the Sixth Amendment to the United States Constitution also protects a defendant's right to appear <italic>pro se</italic>. 2. <italic>Without Counsel — Proceed — Intelligent Understanding — Necessary</italic>. A defendant will be permitted to proceed without counsel only if <italic>he has an</italic><italic>intelligent understanding</italic> of the consequences of so doing. 3. <italic>Self-Representation — Facts — Decision — Knowingly and Intelligently</italic>. Where trial court, prior to trial of defendant charged with second-degree murder, outlined for defendant the procedure to be followed at trial, including the impanelling of the jury, opening statement, closing summation, examination and cross-examination of witnesses, form and content of objections, and procedure for requesting jury instructions, and judge specifically warned that he could not act as an advocate on behalf of defendant, <italic>held</italic>, under these circumstances, defendant was able "knowingly and intelligently" to make the decision to represent himself; moreover, the trial court adequately fulfilled its duty to ascertain that defendant had intelligently decided to represent himself with knowledge of the duties to be imposed upon him and the disadvantages of carrying those burdens himself rather than retaining an attorney. 4. <italic>Advisory Counsel — Refusal — Failure to Appoint — Lack of Error —</italic><italic>Self-Representation</italic>. Defendant's argument — that the trial court on its own motion should have appointed standby, advisory counsel to be available to defendant during trial in the event an occasion requiring assistance should arise — is without merit; in cases such as this one, the decision to appoint standby counsel is a matter which is left to the trial judge's sound discretion, and nothing in the record indicates that the trial court<page_number>Page 550</page_number> abused its discretion in failing to require defendant to accept advisory counsel; moreover, defendant's adamant refusal of advisory counsel when offered before trial was adhered to throughout the trial in spite of his continuing opportunity to request professional assistance; under the circumstances, reviewing court perceives no error in the trial court's decision to let the defendant proceed through the trial exercising his right of self-representation. 5. <italic>Self-Representation — Conviction — Insist — Second Trial —</italic><italic>Prohibited</italic>. One cannot be allowed to insist on his constitutional right to defend himself and then, having been convicted through exercising that right, insist on a second trial because of the court's failure to deny his constitutional right to represent himself. 6. <italic>Self-Representation — Accept — Responsibility — Results</italic>. Defendants who demand the right to represent themselves must accept the concomitant responsibility for the results of the representation they provide. 7. <bold>CRIMINAL EVIDENCE</bold> — <italic>Prior Ill Feeling — Violence — Threats — Admissible</italic><italic>— Homicide</italic>. Facts or circumstances relating to prior ill-feeling, mistreatment, violence, threats, or similar conduct by the defendant toward the victim are admissible to show <italic>motive</italic> and <italic>malice</italic> in homicide cases. 8. <bold>HOMICIDE</bold> — <italic>Wife — Evidence — Prior Injuries — Failure to Link —</italic><italic>Harmless Error — Cumulative — Error — Negative</italic>. In prosecution of defendant for first-degree murder of his wife, admission of evidence of prior injuries to wife without linking injuries to defendant was at most harmless error in that challenged testimony was clearly cumulative to other evidence of malice of defendant toward his wife which was properly before the jury; there was no reversible error. 9. <italic>Key Case — Temporary Admission — Denial of Fair Trial — Negative</italic>. In prosecution of defendant for first-degree murder of his wife, temporary admission of key case — although it was technically "in evidence" for some time, it was not given to the jury nor linked in any way to defendant — did not deny a fair trial. 10. <bold>TRIAL</bold> — <italic>Right — Perfect — Negative — Fair — Proper</italic>. No defendant has a right to a perfect trial; all have a right to a fair trial. 11. <bold>CRIMINAL LAW</bold> — <italic>Speedy Trial — Denial — Negative — Failure to Raise —</italic><italic>Waiver — Rules</italic>. Defendant's contention — that he was denied his right to a speedy trial, as provided by Crim. P. 48(b) and by <italic>Colo. Const</italic>., Art. II, Sec. 16 — is without merit; since he failed to raise this contention prior to trial, he has waived the rights provided by Rule 48(b). 12. <bold>HOMICIDE</bold> — <italic>Jury Instructions — Considered As A Whole — Proper</italic>. In prosecution of defendant for first-degree murder of his wife, reviewing court is of the view that the jury instructions as a whole, when considered together, adequately informed the jury of the law; therefore, there was no reversible error.<page_number>Page 551</page_number>