People v. Coney

• Decision Date: 22 April 2004
• Docket Number: No. 02CA1370.,02CA1370.
• Citation: 98 P.3d 930
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. William Sean CONEY, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

98 P.3d 930

The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. William Sean CONEY, Defendant-Appellant and Cross-Appellee.

No. 02CA1370.

Colorado Court of Appeals, Div. II.

April 22, 2004.

Rehearing Denied June 17, 2004.

Certiorari Denied October 18, 2004.

Jeanne M. Smith, District Attorney, Gordon R. Denison, Deputy District Attorney, Doyle Baker, Deputy District Attorney, William B. Bain, Deputy District Attorney, Colorado Springs, Colorado; Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Hruby Law Firm, LLC, Jeffrey D. Hruby, Littleton, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Justice WILLIAM H. ERICKSON.¹

Defendant, William Sean Coney, appeals the judgment of conviction entered upon jury verdicts finding him guilty of murder in the first degree after deliberation, felony murder, two counts of kidnapping, two counts of aggravated intimidation of a witness, two counts of retaliation against a witness, and one count of accessory to a crime. The People cross-appeal the trial court's ruling barring the deceased victim's father from the courtroom after he had testified. We affirm the judgment and disapprove the ruling.

According to the prosecution's evidence, and as relevant here, prior to the murder at issue in this case, defendant had three drug cases pending. Defendant was determined to find the informant who turned him in, and he "made friends with" the victim to find out whether she was "the one doing it." He accused numerous persons, including the victim, of being the "snitch."

The victim came to defendant's house, where defendant and codefendant were manufacturing methamphetamine. She was "raising hell," high on methamphetamine, and screaming she was not a "narc."

Later that night, codefendant heard defendant's wife say "Get this bitch out of here." At that point codefendant went to the kitchen, picked up the victim, who was "wasted drunk," and put her down next to a car parked in the driveway. Defendant then hit the victim on the head with a bat, and she fell down. Codefendant returned to the garage and, when he looked outside, saw a hose going into the back window of the car and a tarp covering the car. Defendant came into the garage, got into the car, and drove away.

Defendant drove to his girlfriend's house, woke her up, and told her the victim was "acting crazy" at his house. Defendant took his girlfriend for a drive in the car, stopped it at a remote location, pulled the victim out, and put her body in a drainage ditch. While driving home, defendant told his girlfriend they had beaten the victim, poured acid on her, and tried to poison her with carbon monoxide. Defendant told his girlfriend not to say anything or "she would end up there too," which she understood to mean that she, like the victim, would end up in the ditch.

Four witnesses, who spoke with defendant at various times, testified that defendant confessed to murdering the victim.

Following a jury trial, defendant was found guilty as charged. This appeal followed.

I.

Defendant first contends the trial court committed prejudicial error by permitting testimony relating to his pending drug cases. We disagree.

"Criminal occurrences do not always take place on a sterile stage," and where the events leading up to the crimes charged are part of the scenario that explains the setting in which the crimes occurred, "no error is committed by permitting the jury to view the criminal episode in the context in which it happened." People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.1990)(quoting People v. Lobato, 187 Colo. 285, 289-90, 530 P.2d 493, 496 (1975)). Evidence of other offenses or acts that are part and parcel of the charged offenses is admissible as res gestae. People v. Martinez, 24 P.3d 629 (Colo.App.2000).

Res gestae evidence can include prior criminal episodes that provide necessary background for the charged offense. People v. Bernabei, 979 P.2d 26 (Colo.App.1998). Such evidence is not subject to the procedural requirements of CRE 404(b) and may be admitted without a limiting instruction. People v. Lucas, 992 P.2d 619 (Colo.App.1999). However, before admitting res gestae evidence, the trial court must find that its probative value is not substantially outweighed by the danger of unfair prejudice. People v. Rollins, 892 P.2d 866 (Colo.1995); CRE 403.

A trial court has substantial discretion in deciding questions concerning the admissibility of evidence. Thus, a trial court's ruling related to the admission of evidence will not be overturned absent an abuse of discretion. People v. Rivers, 70 P.3d 531 (Colo.App.2002).

Here, the trial court reasoned that the evidence gave the jury an "understanding of the context of other statements made by other witnesses." Further, to establish the elements of the charged crimes of intimidation of a witness and retaliation against a witness, the prosecution had to show that defendant believed the victim was going to be a prosecution witness in one or more of defendant's pending drug cases. See §§ 18-8-704, 18-8-705, 18-8-706, C.R.S.2003. Thus, the existence of the pending cases was evidence of that element.

We conclude the trial court did not abuse its discretion in allowing evidence of defendant's drug arrests as res gestae because defendant's pending drug cases, and his concern about finding the "snitch" who had turned him in, were inextricably intertwined with the charged crimes. Without some understanding that defendant had drug charges pending, the jury would have been unable to understand fully his preoccupation with finding the snitch. Likewise, defendant's own statements concerning his relationship with the victim, and the effects of his drug arrests on that relationship, provided necessary background for the jury.

This evidence was necessary to complete the description of the criminal episode for the jury and was therefore properly admitted as res gestae. See Williams v. People, 724 P.2d 1279 (Colo.1986)

; Bernabei, supra; People v. Fears, 962 P.2d 272 (Colo.App.1997).

II.

Next, defendant argues that the trial court committed plain error by failing sua sponte to give a limiting instruction contemporaneously with the admission of evidence of his prior arrests. We disagree.

This evidence was properly admitted as res gestae and thus could be admitted without a limiting instruction. See People v. Quintana, 882 P.2d 1366 (Colo.1994)

; People v. Lucas, supra.

III.

Defendant also argues that, because testimony concerning a "snitch list" was irrelevant and unduly prejudicial, the trial court erred in allowing it. We disagree.

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 403; People v. Gibbens, 905 P.2d 604, 607 (Colo.1995). However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. CRE 401; People v. Dist. Court, 785 P.2d 141 (Colo.1990).

Unfair prejudice refers to "an undue tendency on the part of admissible evidence to suggest a decision made on an improper basis." Gibbens, supra, 905 P.2d at 608 (quoting People v. Dist. Court, 869 P.2d 1281, 1286 (Colo.1994)). Evidence is not unfairly prejudicial simply because it damages the defendant's case. "All effective evidence is prejudicial in the sense of being damaging or detrimental to the party against whom it is offered." Masters v. People, 58 P.3d 979, 1001 (Colo.2002) (quoting People v. Dist. Court, supra, 785 P.2d at 147).

The trial court has considerable discretion in applying the balancing test set forth in CRE 403, and we will not disturb its ruling on appeal absent an abuse of discretion. Masters v. People, supra.

To demonstrate an abuse of discretion, a defendant must show the trial court's decision was manifestly arbitrary, unreasonable, or unfair. Masters, supra. On review, we must give the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected. People v. Kenny, 30 P.3d 734 (Colo.App.2000).

Here, in pretrial motions, the trial court overruled defendant's objection to the admission of the "snitch list," noted that the list's prejudicial value was "significantly less than [defendant's] arrests on those prior dates," and pointed out that "the victim is not on the snitch list anyway."

We conclude that this decision was not manifestly arbitrary, unreasonable, or unfair. At trial, the prosecution's theory was that defendant killed the victim because he thought she was a "snitch." The "snitch list" evidence was relevant to defendant's intent and state of mind at the time of the murder, because it demonstrated his preoccupation with finding the person who had turned him in to the police. Accordingly, this evidence was relevant and probative of defendant's motive and thus was properly admissible at trial.

IV.

Defendant also argues the trial court committed rèversible error by allowing a records clerk employed by the El Paso County Sheriff's Office to serve as a juror. He asserts this juror was ineligible to serve on a jury in any criminal proceeding. We are not persuaded.

Section 16-10-103(1)(k), C.R.S.2003, provides that a trial court shall sustain a challenge for cause if the juror is a compensated employee of a public law enforcement agency or a public defender's office.

However, it is incumbent upon the challenging party to state clearly on the record the particular ground on which a challenge for cause is made. People v. Russo, 713 P.2d 356, 360 (Colo.1986). Although some cases have upheld a trial court's sua sponte excusal of a juror, see People v. Evans, 987 P.2d 845 (Colo.App.1998),

overruled on other grounds by People v. Lefebre 5 P.3d 295 (Colo.2000), we are...