Annotation I. General Consideration. Law reviews. For note, “The Criminal Jury and Misconduct in Colorado”, see 36 U. Colo. L. Rev. 245 (1964). For article, “Criminal Procedure”, which discusses a recent Tenth Circuit decision dealing with a motion for a new trial based on recanted testimony, see 62 Den. U. L. Rev. 189 (1985). Prior to April, 1974, motion for new trial not required. Prior to April, 1974, there was no express language in any of the rules of criminal procedure or appellate rules that required a motion for new trial. People v. Martinez, 190 Colo. 507, 549 P.2d 758 (1976). Motion does not bar double jeopardy protection against retrial. A motion for a new trial does not relinquish the right to invoke double jeopardy guarantees against retrial of the charge upon which no verdict was returned. Ortiz v. District Court, 626 P.2d 642 (Colo. 1981). Federal court will deny “habeas corpus” where defendant fails to exhaust remedies under this rule. Tanksley v. Warden of State Penitentiary, 429 F.2d 1308 (10th Cir. 1970). Granting or denying motion for new trial does not constitute an appealable final judgment. People v. Jones, 690 P.2d 866 (Colo. App. 1984). Applied in People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976); People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977); People v. Vigil, 39 Colo. App. 371, 570 P.2d 13 (1977); People v. Davis, 194 Colo. 466, 573 P.2d 543 (1978); People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978); People v. Reyes, 42 Colo. App. 73, 589 P.2d 1385 (1979); People v. Am. Health Care, Inc., 42 Colo. App. 209, 591 P.2d 1343 (1979); People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1979); People v. Rael, 199 Colo. 201, 612 P.2d 1095 (1980); People v. Glenn, 200 Colo. 416, 615 P.2d 700 (1980); People v. Smith, 620 P.2d 232 (Colo. 1980); People v. Trujillo, 624 P.2d 924 (Colo. 1980); People v. Dillon, 631 P.2d 1153 (Colo. App. 1981); People v. Holder, 632 P.2d 607 (Colo. App. 1981); People v. Dillon, 633 P.2d 504 (Colo. App. 1981); People v. Harris, 633 P.2d 1095 (Colo. App. 1981); People v. Allen, 636 P.2d 1329 (Colo. App. 1981); People v. Brassfield, 652 P.2d 588 (Colo. 1982); People v. Matthews, 662 P.2d 1108 (Colo. App. 1983); People v. Anderson, 703 P.2d 650 (Colo. App. 1985). II. No Review Unless Motion Made. Lack of contemporaneous objection is waiver. Lack of contemporaneous objection to testimony at time of trial constitutes waiver of new trial, and issue cannot be raised on appeal. People v. Routa, 180 Colo. 386, 505 P.2d 1298 (1973). Where defendant failed to object to an identification procedure at his preliminary hearing, and he made no objection to victim’s testimony concerning the preliminary hearing identification at the trial or in his motion for new trial, defendant could not assert this objection for the first time on appeal. People v. Horne, 619 P.2d 53 (Colo. 1980). Appellate review is generally limited to errors presented to trial court for its consideration by a motion for new trial. Vigil v. People, 196 Colo. 522, 587 P.2d 1196 (1978). Only matters contained in the motion for new trial will be considered on appeal. Quintana v. People, 152 Colo. 127, 380 P.2d 667, cert. denied, 375 U.S. 863, 84 S. Ct. 132, 11 L. Ed. 2d 89 (1963); Cook v. People, 129 Colo. 14, 266 P.2d 776 (1954); Rueda v. People, 141 Colo. 502, 348 P.2d 957, cert. denied, 362 U.S. 923, 80 S.Ct. 673, 4 L. Ed. 2d 744 (1960); Wilson v. People, 143 Colo. 544, 354 P.2d 588 (1960); Dyer v. People, 148 Colo. 22, 364 P.2d 1062 (1961); Peterson v. People, 153 Colo. 23, 384 P.2d 460 (1963); Brown v. People, 158 Colo. 561, 408 P.2d 981 (1965); Lucero v. People, 158 Colo. 568, 409 P.2d 278 (1965). Failure to raise an issue in the motion for a new trial deprives the appellate court of jurisdiction to consider it unless the issue is one involving plain error affecting the substantial rights of the defendant. People v. Peterson, 656 P.2d 1301 (Colo. 1983). Failure to file a motion for new trial precludes consideration of issues raised on appeal. People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980); People v. Ullerich, 680 P.2d 1306 (Colo. App. 1983). Matters which counsel intends to raise on appeal must be preserved in a motion for a new trial. Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971). When errors alleged with regard to the admission of testimony were not raised during the trial or in the defendant’s motion for a new trial, they need not be considered on appeal. Ortega v. People, 178 Colo. 419, 498 P.2d 1121 (1972). Absent a properly filed and acted on motion for new trial, appellate review is precluded. People v. Nisted, 653 P.2d 60 (Colo. App. 1980). Filing notice of appeal divests court of power to grant motion. Once the notice of appeal is filed, the trial court is left powerless to grant a motion for a new trial. People v. Dillon, 655 P.2d 841 (Colo. 1982). Motion prerequisite for review of probation revocation. A motion for new trial is a prerequisite for appellate review of a revocation of probation except when the propriety of a sentence is being appealed as provided in Rule 4(c), C.A.R.People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980). And motion required for review of revocation of deferred sentence. Compliance with the motion for a new trial requirement of section (a) is a prerequisite for appellate review of a trial court’s judgment revoking a deferred sentence, and imposing a sentence. Hallman v. People, 652 P.2d 173 (Colo. 1982). Reasons need not be set forth in denial of motion. When a motion for a new trial is denied, reasons need not be set forth, because the motion is the basis and foundation for review of the judgment on appeal. Losavio v. District Court, 182 Colo. 186, 512 P.2d 264 (1973). But where there is a claim that the trial court committed plain error which was prejudicial to substantial rights of the defendant, appellate review may be had without the issue being raised in a new trial motion. People v. Ullerich, 680 P.2d 1306 (Colo. App. 1983). III. Motion, Contents, Time. A. In General. Purpose of a motion for a new trial is to accord the trial judge a fair opportunity to consider and correct, if necessary, any erroneous rulings, and to acquaint him with the specific objection to those rulings. Losavio v. District Court, 182 Colo. 186, 512 P.2d 264 (1973). The only purpose of requiring a motion for a new trial is to correct the trial court’s own errors. Haas v. People, 155 Colo. 371, 394 P.2d 845 (1964). Timely motion for new trial is not jurisdictional in the sense that without it the court would lack authority to adjudicate the subject matter. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Unlike cases governed by the rules of civil procedure, in a criminal case the timely filing of a motion for new trial is not a jurisdictional prerequisite to the appeal of a judgment of conviction. People v. Masamba, 39 Colo. App. 197, 563 P.2d 382 (1977). An untimely filed motion for new trial does not divest an appellate court of jurisdiction to consider the issues raised on appeal which are also presented in the motion. People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980). Trial court may grant extension of filing time. In contrast to the provisions of the rules of civil procedure governing motions for new trial, upon a showing of excusable neglect the trial court is authorized under the criminal rules of procedure to grant an extension of time for filing the motion for new trial after the original 10 days had expired, or, after the expiration of any extended date granted by the trial court. People v. Masamba, 39 Colo. App. 197, 563 P.2d 382 (1977). Defendant may show excusable neglect for late filing. Where the prosecution objects to the late filing of a motion for new trial prior to the time of hearing on the motion, the defendant is afforded the opportunity to show, pursuant to Rule 45(b)(2), Crim. P., that the late filing was due to excusable neglect. People v. Masamba, 39 Colo. App. 197, 563 P.2d 382 (1977). Timeliness issue held waived. The prosecution, by failing to object to the trial court’s hearing and deciding the new trial motion, waived their right to raise the timeliness issue on appeal. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Where there was no affirmative showing in the record on appeal that the prosecution objected to the late filing of defendant’s motion for new trial prior to the time it was ruled upon by the trial court, that objection was deemed waived, and the prosecution was estopped to raise it for the first time on appeal. People v. Masamba, 39 Colo. App. 197, 563 P.2d 382 (1977). Granting of motion is in court’s discretion. Where an error is called to the court’s attention for the first time in a motion for new trial, the question of whether a new trial should be granted involves the exercise of the court’s discretion. Abeyta v. People, 145 Colo. 173, 358 P.2d 12 (1960). Such as for misconduct of counsel. The question of whether a new trial should be granted for misconduct of counsel in his remarks to the jury rests in the sound judicial discretion of the trial court. Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969). And this discretion will not be interfered with on appeal unless it manifestly appears that such discretion has been abused. Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969). But this rule includes mandatory provision that motion based on newly discovered evidence be supported by affidavits, and this provision is impervious to judicial discretion. People ex rel. J.P.L., 214 P.3d 1072 (Colo. App. 2009). The standard by which to judge a court’s grant of a new trial under this rule is whether the court abused its discretion. People v. Jones, 942 P.2d 1258 (Colo. App. 1996). Motion for new trial after trial on merits preserves errors alleged in sanity trial. A motion for a new trial after trial on the merits is sufficient to preserve for appeal errors alleged in the sanity trial, because the judgment declaring the defendant sane is not final for appeal purposes until defendant is found guilty of the crime charged. People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979). For differing considerations governing effect of time limitations in criminal cases and in civil cases, see People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). In order for a new trial to be granted on the basis of a prosecutor’s remarks, in the absence of a contemporaneous objection, they must be particularly egregious. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989). No basis in the record to conclude the jury’s review of a silent videotape during deliberations was in any way prejudicial and the trial court therefore properly denied defendant’s motion for a mistrial or new trial on this basis. People v. Blecha, 940 P.2d 1070 (Colo. App. 1996), aff’d, 962 P.2d 931 (Colo. 1998). B. Contents. Points of error must be raised with particularity. This rule requires the filing of a motion for new trial in which points of error must be raised with particularity. Feldstein v. People, 159 Colo. 107, 410 P.2d 188 (1966). See Jobe v. People, 158 Colo. 571, 408 P.2d 972 (1965); Cruz v. People, 165 Colo. 495, 441 P.2d 22 (1968). Attention should be drawn specifically to the alleged objectionable rulings in a motion for a new trial, and general objections and assignments of error fall far short of calling to the court’s attention any specific error made in connection with its rulings. Losavio v. District Court, 182 Colo. 186, 512 P.2d 264 (1973). To give guidance to court. When the motion for a new trial does not set forth with particularity the reason that a new trial is required, a vacuum exists which leaves the trial judge without direction and without guidance as to how the new trial should be conducted. Losavio v. District Court, 182 Colo. 186, 512 P.2d 264 (1973). Testimony treated as substance of affidavit. A witness’s testimony on direct examination may be treated as constituting the substance of the affidavit required for a new trial. Hernandez v. People, 175 Colo. 155, 486 P.2d 24 (1971). C. Based on Newly Discovered Evidence. Motion regarded with disfavor. A motion for new trial on grounds of newly discovered evidence is regarded with disfavor. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974); People v. Jones, 690 P.2d 866 (Colo. App. 1984); People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Williams, 827 P.2d 612 (Colo. App. 1992); People v. Leonard, 872 P.2d 1325 (Colo. App. 1993); People v. Graham, 876 P.2d 68 (Colo. App. 1994). A motion for new trial based on newly discovered evidence is generally not looked upon with great favor because to do otherwise would encourage counsel to neglect to gather all available evidence for the first trial and, if unsuccessful, then to become diligent in securing other evidence to attempt to reverse the outcome on a second trial. People v. Mays, 186 Colo. 123, 525 P.2d 1165 (1974); People v. Scheidt, 187 Colo. 20, 528 P.2d 232 (1974). Motion addressed to court’s discretion. A motion for new trial based upon newly discovered evidence is addressed to the sound discretion of the trial court. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974). And unless an abuse of discretion is affirmatively shown, the denial of a motion for a new trial based on newly discovered evidence will not be disturbed on appeal. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974); People v. Jones, 690 P.2d 866 (Colo. App. 1984); People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Leonard, 872 P.2d 1325 (Colo. App. 1993). The denial of a motion for a new trial based upon newly discovered evidence will not be overturned unless there has been shown a clear abuse of the trial court’s discretion. People v. Scheidt, 187 Colo. 20, 528 P.2d 232 (1974). Trial court did not abuse its discretion in denying motion for new trial due to newly discovered evidence because the evidence probably would not have resulted in an acquittal on retrial. People v. Leonard, 872 P.2d 1325 (Colo. App. 1993). To succeed on motion for new trial based upon newly discovered evidence, the defendant should show that the evidence was discovered after the trial; that defendant and his counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial; that the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and that on retrial the newly discovered evidence would probably produce an acquittal. People v. Scheidt, 187 Colo. 20, 528 P.2d 232 (1974); People v. Jones, 690 P.2d 866 (Colo. App. 1984); People v. Williams, 827 P.2d 612 (Colo. App. 1992). Showing of diligent search and inquiry is a cardinal prerequisite of a new trial based upon newly discovered evidence. Isbell v. People, 158 Colo. 126, 405 P.2d 744 (1965); Pieramico v. People, 173 Colo. 276, 478 P.2d 304 (1970); People v. Jones, 690 P.2d 866 (Colo. App. 1984). When defense was aware of the possibility that someone else committed the crime but didn’t pursue the theory and instead chose to rely on alibi witness, the motion for new trial was properly denied. People v. Stephens, 689 P.2d 666 (Colo. App. 1984). Else motion will be denied. Where the newly discovered evidence was cumulative in nature and could, with the exercise of due diligence, have been discovered before trial, motion for new trial was properly denied. People v. Mays, 186 Colo. 123, 525 P.2d 1165 (1974). When evidence could have been discovered with reasonable diligence and the result of the trial would probably not have been changed if the evidence had been presented, the trial court properly denied the motion for a new trial. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986). Denial for motion for new trial based upon newly discovered evidence was proper where the asserted newly discovered evidence was either merely cumulative or impeaching and was neither material to the issues involved nor would it have probably produced a verdict of acquittal on retrial. People v. Williams, 827 P.2d 612 (Colo. App. 1992); People v. Graham, 876 P.2d 68 (Colo. App. 1994). Evidence must be of character to probably bring about acquittal. Newly discovered evidence must be of such a character as to probably bring about an acquittal verdict if presented at another trial. People v. Scheidt, 187 Colo. 20, 528 P.2d 232 (1974); People v. Jones, 690 P.2d 866 (Colo. App. 1984). As where codefendant is induced. Where the motion for new trial sets forth as newly discovered evidence the fact that following defendant’s conviction the charge against a codefendant is dismissed, and that this casts grave doubt as to the truth of his testimony that no promise had been made to him, then the ends of justice require that the court conduct a hearing with the additional consideration of any probative evidence on the question of whether there was any inducement to procure the codefendant’s testimony, the extent and nature thereof, if so, and then grant or deny the motion. Mitchell v. People, 170 Colo. 117, 459 P.2d 284 (1969). Evidence showing verdict influenced by false testimony sufficient. If newly discovered evidence is of such a character as to make it appear that the verdict was probably influenced by false or mistaken testimony and that upon another trial the result would probably, or might, be different, or even doubtful, then a new trial should be granted. Cheatwood v. People, 164 Colo. 334, 435 P.2d 402 (1967); Baker v. People, 176 Colo. 99, 489 P.2d 196 (1971); DeLuzio v. People, 177 Colo. 389, 494 P.2d 589 (1972). But cumulative evidence insufficient. Where the newly discovered evidence was cumulative in nature and could, with the exercise of due diligence, have been discovered before trial, and the outcome of the case on retrial would probably be the same, motion for new trial was properly denied. People v. Mays, 186 Colo. 123, 525 P.2d 1165 (1974). Evidence to discredit expert testimony insufficient. Newly discovered evidence that would merely tend to discredit or impeach expert testimony would not be grounds for a new trial. Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972). Evidence held not newly discovered as contemplated by this rule. See Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972). Evidence within the defendant’s knowledge before trial does not constitute newly discovered evidence as a basis for a new trial. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974). Where defendant filed a motion for a new trial based on newly discovered evidence, such evidence being that defendant was threatened with death if he testified in his own behalf and such threat was made without the knowledge of his attorney, the motion was properly denied since this was not a case of newly discovered evidence as the evidence presented consisted of facts which obviously were known to the defendant at the time of his trial. People v. Drumright, 189 Colo. 26, 536 P.2d 38 (1975). Magistrate did not abuse his discretion in denying motion for a new trial where movant failed to file mandatory supporting affidavits with the motion and magistrate denied motion based on this deficiency. People ex rel. J.P.L., 214 P.3d 1072 (Colo. App. 2009). A defendant who has pled guilty is not entitled to request a new trial under this rule because the defendant has been convicted not after trial but upon his or her own admissions. People v. Ambos, 51 P.3d 1070 (Colo. App. 2002). D. Based on Other Grounds. Trial court did not abuse discretion by denying motion for a new trial without a hearing where several hearings were set that had to be continued because of defendant’s hostility and unwillingness to cooperate with counsel. People v. Eckert, 919 P.2d 962 (Colo. App. 1996). Trial court did not err in denying defendant a hearing on his motion for a new trial based on ineffective assistance of counsel where defendant failed to allege any acts or omissions of defense counsel that deprived him of a defense. In the absence of particularized facts supporting defendant’s assertion of ineffective assistance of counsel, it was within the trial court’s discretion to deny defendant a hearing on the motion. People v. Esquivel-Alaniz, 985 P.2d 22 (Colo. App. 1999). Motion denied where defendant received fair, although not perfect, trial. Although defendant did not receive a perfect trial, he did receive a fair trial, and because the law of Colorado entitles him to nothing more, his motion for a new trial was denied. People v. Scheidt, 182 Colo. 374, 513 P.2d 446 (1973). Fact that jury deliberates less than 45 minutes does not warrant the granting of a new trial. People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973). Evidence which is cumulative or corroborative will normally not support the granting of a motion for new trial. People v. Gallegos, 187 Colo. 6, 528 P.2d 229 (1974). Discovery of evidence unlikely to change verdict insufficient. A new trial is not required whenever a combing of the prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. Sandoval v. People, 180 Colo. 180, 503 P.2d 1020 (1972). New trial on basis of prosecution asking improper questions denied. See People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). In order to justify a new trial based on a tainted jury, the defendant must show evidence of prejudice. People v. Barger, 732 P.2d 1225 (Colo. App. 1986). Prejudice occurring during jury sequestration. The determination of whether prejudice has occurred during jury sequestration is within the sound discretion of the trial court and only where that discretion has been abused will a new trial be ordered. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974). Presence of armed uniformed officers in courtroom insufficient. The court did not abuse its discretion in overruling defendant’s motion for a new trial where defendant asserted that the presence of two armed uniformed officers in the courtroom constituted prejudicial error. People v. Romero, 182 Colo. 50, 511 P.2d 466 (1973). Phone call by juror insufficient, absent showing of prejudice. It is not error to fail to grant a new trial because a juror allegedly makes a phone call out of the bailiff’s presence, which is not shown to be prejudicial to the defendant. People v. Peery, 180 Colo. 161, 503 P.2d 350 (1972). Improper communications to jury are presumptively prejudicial, especially if the communications deal with the punishment or sentencing of a defendant. People v. Cornett, 685 P.2d 224 (Colo. App. 1984). Juror misconduct. Defendant must establish the truth of the allegations on which he bases his motion for a new trial and produce evidence of the alleged juror misconduct. People v. Stephens, 689 P.2d 666 (Colo. App. 1984). Allegations on which motion based must be supported by evidence. Mere hearsay allegations in an affidavit will warrant denial of motion. People v. Hernandez, 695 P.2d 308 (Colo. App. 1984). Failure to establish the truth of hearsay allegations contained in an affidavit will warrant denial of a motion for a new trial based on alleged juror misconduct. People v. Rogers, 706 P.2d 1288 (Colo. App. 1985). Misconduct of juror in sleeping through defense counsel’s closing argument sufficiently prejudiced defendant to warrant a new trial. People v. Evans, 710 P.2d 1167 (Colo. App. 1985). Untruthful answers on voir dire concerning material matters do not entitle a party to a new trial per se. Under some circumstances, however, a juror’s nondisclosure of information during jury selection may be grounds for a new trial. Allen v. Ramada Inn, Inc., 778 P.2d 291 (Colo. App. 1989). Only undisclosed information material to defendant’s theory of the case and which might have affected the outcome of the trial will mandate reversal. People v. Rogers, 706 P.2d 1288 (Colo. App. 1985). Jurors learning of a co-defendant’s guilty plea and capture of another co-defendant through the media insufficient absent a showing of prejudice. People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev’d on other grounds, 712 P.2d 1023 (Colo. 1986).