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Law School Case Brief

People v. Lucero - 747 P.2d 660 (Colo. 1987)


A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship. In this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding. The contract alone is not sufficient, unless it is followed by its consummation, that is, by cohabitation as husband and wife. 


Defendant Emilio J. Lucero was convicted in Colorado state court of attempted robbery of the elderly and conspiracy to commit robbery of the elderly. At trial, and over Lucero's objection, Rosemary Trujillo, who claimed to be Lucero's common law wife, was permitted to testify as a witness for the prosecution, that she owned a white 1973 Mercury, which was the same make and model as a car involved in the crime, and that she gave Lucero permission to use her car on the date of the alleged crimes, and that she did not have any guns and that to her knowledge there were no bullets in the car on that date. Lucero appealed, contending that the trial court erred in receiving Trujillo's testimony. Lucero based his objection to the admission of such evidence upon § 13-90-107(1)(a), 6 C.R.S. (1973), which created a privilege with respect to testimony by one spouse for or against the other. The Colorado Court of Appeals held that the evidence established, as a matter of law, a common law marriage and that admission of Trujillo's testimony violated § 13-90-107(1)(a), which was reversible error. The State was granted a writ of certiorari.


Was a common law marriage established by the evidence presented?




The state supreme court reversed the decision of the court of appeals and returned the case to the court of appeals with directions to remand to the trial court for further findings. The court concluded that the trial court's ruling lacked sufficient detail to enable the court to determine whether that court applied the correct standards in determining the existence of a common law marriage. Thus, the court of appeals erred in determining this issue as a matter of law. Mutual consent or agreement manifested by mutual public acknowledgment of the marital relationship was essential to the establishment of a common law marriage. In Lucero's case, the trial court was offered evidence that, if believed, would have established the existence of a common law marriage. The court noted that a determination of whether a common law marriage existed turned on issues of fact and credibility, which were properly within the trial court's discretion. In ruling that no such marriage existed, the trial court gave no indication of its reasoning, and it did not make any finding that the testimony of the purported wife was lacking in credibility. The court explained that on remand, the trial court was required to reconsider the issue of the existence of a common law marriage applying the standards set forth by the court. If it concluded that a common law marriage existed between Lucero and Trujillo at the time she testified, reversal of the judgment of conviction was required. If, on the other hand, the trial court concluded that no such marriage existed at that time, the judgment of conviction was to be affirmed.

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