Carrillo v. People, No. 97SC517

Docket NºNo. 97SC517
Citation974 P.2d 478
Case DateFebruary 22, 1999
CourtSupreme Court of Colorado

Page 478

974 P.2d 478
1999 CJ C.A.R. 1006
David Richard CARRILLO, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent.
No. 97SC517.
Supreme Court of Colorado,
En Banc.
Feb. 22, 1999.
Rehearing Denied March 15, 1999.

Page 480

Richard E. Mishkin, P.C., Richard E. Mishkin, Lisa A. Vanderhoof, Lakewood, Colorado, Attorneys for Petitioner.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Paul Koehler, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Respondent.

Justice BENDER delivered the Opinion of the Court.

This murder case involves two distinct issues concerning whether the defendant's right to a fair jury trial was violated. We review the decision of the court of appeals in People v. Carrillo, 946 P.2d 544 (Colo.App.1997), which affirmed Carrillo's convictions. Concerning the first issue, the court of appeals held that the trial court did not abuse its discretion by denying Carrillo's challenge for cause to a prospective juror who knew the victim's father and was a prosecution witness. See id. at 548. The second issue arose when the jury announced a verdict that appeared to be non-unanimous when the individual jurors were polled. See id. at 550. Upon learning that the lone dissenting juror's hearing problem had prevented him from hearing significant portions of the trial testimony and jury deliberations, the trial court substituted an alternate juror for the dissenting juror. See id. The court of appeals held that this mid-deliberation juror substitution did not violate Carrillo's right to a fair trial in light of the precautions taken by the trial court. See id. We affirm the judgment of the court of appeals with respect to both issues but on slightly different grounds.

I. Facts

David Carrillo was one of eight defendants charged in connection with the gang-related murder of Chris Romo. According to evidence presented at trial, in the early morning hours of June 28, 1993, Carrillo's brother, Anthony Carrillo, shot Chris Romo through Romo's bedroom window while Romo was lying on his bed. Chris Romo's father, George Romo, heard the shot and went to his son's bedroom, where his son said that he had been shot by Anthony Carrillo. Later that day Chris Romo died from the gunshot wound.

Of the eight co-defendants, only Carrillo and Phillip Montoya proceeded to trial. Carrillo

Page 481

and Montoya were charged with first degree murder and conspiracy to commit first degree murder and were tried jointly. Carrillo faced the additional charge of contributing to the delinquency of a minor--Montoya and another juvenile.

As part of the jury selection process, prospective jurors answered questionnaires concerning their backgrounds and knowledge of the case. One prospective juror, Gilbert Pacheco, stated on the questionnaire that he worked with George Romo, the victim's father, who presumably was listed on the questionnaire as a potential witness. Early in the voir dire process, Pacheco said that he understood the presumption of innocence. In a dialogue with Montoya's attorney, Pacheco initially said that he expected to hear Montoya's side of the story. Upon further questioning, however, Pacheco agreed that if Montoya chose not to present a defense or chose not to testify, he would not hold it against him since he understood that Montoya was not required to do either.

The trial court arranged for the attorneys to question Pacheco in camera concerning his relationship with George Romo. Pacheco stated that he had worked with Romo for five years. Although he and Romo worked in different areas, Romo issued equipment to him. Apparently referring to this time period, Pacheco stated, "I would go in and talk with him and spend a couple of hours, and so - and he would do lots of talking and talking about his family." Pacheco further stated that he and Romo had worked more closely together during the summer before the trial.

Pacheco also said that Romo never mentioned his son's murder to him, but that Pacheco and some of his fellow workers discussed the murder and speculated about what had happened. When asked whether what he had heard about the case influenced him, Pacheco stated:

Well, I think of George because I have a 25-year-old son and a 22-year-old daughter. And if something would happen to them, even though they didn't live with me, I think I would take it kind of hard and want something done about it, you know.

Montoya's attorney responded by telling Pacheco that such feelings were natural but that they had no place in this trial because Pacheco was required to approach his responsibility as "a clean slate." Montoya's attorney then asked Pacheco if he was "a clean slate":

Pacheco: I think - I think I could do a clean slate. I have to think real hard about it to tell you the truth.

Attorney: Okay. But now is the time that you have got to tell us. I mean, you can't think about it later, you know, right? You either can or you can't. You know how important this is to Mr. Montoya. So would you want you to be a juror in this case if you are Mike Montoya?

Pacheco: No, I wouldn't.

Attorney: And I take it that's because you have already formed some opinions?

Pacheco: A little bit, and I've been trying real hard to push it out of the way.

Attorney: And - but you can't. Just - you can't?

Pacheco: No.

At this point, the prosecutor began to question Pacheco. The prosecutor asked Pacheco what he thought had happened in the case. Pacheco replied:

Well, it's everything. We talked at work, and what we read in the paper. George, I never really talked to him about it because he stood away from us, and he was taking it really hard, and we didn't really push him on it. But what happened is, two kids went up and shot Chris in the back. And then they - later on, they caught them. And, you know, right away, I said, "Hey, they are guilty," you know. They caught them, and, you know. And like I said, if you did it, then you should pay for it. That's the way I was always brought up. And if you are wrong, you should pay for it.

The prosecutor followed up by asking Pacheco if he knew the names of the people involved. Pacheco answered that the names started coming up later that summer. These questions and answers followed:

Prosecutor: I mean, you don't know right now?

Page 482

Pacheco: I don't know them directly.

Prosecutor: I mean, do you think that these people were directly involved in it today?

Pacheco: I just knew by names. I don't know them. It is just the names that I heard.

Prosecutor: Well, what I am getting at is, you listen to the evidence and determine in your own mind whether these two defendants were the ones that were involved?

Pacheco: I would listen to it, yes, and try to base my opinion on what I hear. But as I stated to the defendants here, that I wouldn't like to have me on the jury.

Prosecutor: And that is fine.

Pacheco: Yes. I would listen and try to base my opinion on what I hear.

Prosecutor: You would try to do that?

Pacheco: Yes, sir.

Prosecutor: And would you do that?

Pacheco: Yes, sir.

Prosecutor: Do you think that you could do that?

Pacheco: I think I could.

Prosecutor: Okay. I mean, at this point you don't know whether these defendants were the ones that were involved or not, do you?

Pacheco: No, I don't.

Prosecutor: Are you willing to listen to the evidence and decide it based on what's presented to you?

Pacheco: Yes, I think I would.

Additional questioning by Carrillo's attorney revealed that Pacheco had never met Chris Romo but knew about him from talking to George Romo. The court did not ask Pacheco any questions.

Carrillo challenged potential juror Pacheco for cause, and the court summarily denied the challenge. Carrillo later used one of his peremptory challenges to remove Pacheco from the jury. Carrillo subsequently exercised all of his peremptory challenges.

Also during jury selection, a prospective juror, Adolph Cordova, repeatedly said that he had difficulty hearing but that his doctor told him that he did not need a hearing aid. The prosecutor offered to stipulate to a challenge for cause in light of Cordova's hearing problem. However, the trial court stated that Cordova seemed able to hear and no such stipulation was reached. Both defendants passed Cordova for cause. Eventually, the court impaneled a jury of twelve, including Cordova, plus four alternate jurors.

Carrillo's theory of defense was that when he and the others went to Romo's house, their only agreement and intention was to break Romo's windows. Carrillo argued that his brother, Anthony Carrillo, committed the murder without his knowledge or participation.

At the close of trial, after instructing the jury, the court informed the four alternate jurors that although they were free to leave the courtroom, they were not discharged from jury service. The court told the alternates that its previous instructions concerning their conduct as jurors were still applicable. The court also specifically instructed the alternates not to have contact with any member of the press.

The jury retired to deliberate at a few minutes past 3:00 p.m. They continued deliberating, with one brief interruption, until recessing shortly after 5:00 p.m. The jurors resumed deliberation the next morning at 8:30 a.m. At 11:15 a.m., they announced that they had reached a verdict. The verdict forms indicated that the jury found both Carrillo and Montoya guilty of first degree murder and conspiracy to commit first degree murder. The verdict forms further indicated that the jury found Carrillo guilty of contributing to the delinquency of a minor. In addition, the verdict forms indicated that the jury found both Carrillo and Montoya not guilty of conspiracy to commit criminal mischief under $400, a lesser-included offense.

The court...

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133 practice notes
  • Dunlap v. People, No. 04SA218.
    • United States
    • Colorado Supreme Court of Colorado
    • May 14, 2007
    ...his peremptory challenges. Macrander, 828 P.2d at 244. In such a situation, the error cannot be deemed harmless. Id.; Carrillo v. People, 974 P.2d 478, 486-87 (Colo.1999). Because Dunlap failed to exhaust his peremptory challenges, he has no claim that his substantial right to the use of hi......
  • State v. Galindo, No. S-04-443.
    • United States
    • Supreme Court of Nebraska
    • October 9, 2009
    ...Com. v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001). See, also, State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998); Carrillo v. People, 974 P.2d 478 (Colo. 1999); Stokes v. State, 281 Ga. 825, 642 S.E.2d 82 (2007); Powers v. State, 945 So.2d 386 (Miss.2006); State v. Jaynes, 353 N.C. 534, 5......
  • Medina v. People, No. 04SC167
    • United States
    • Colorado Supreme Court of Colorado
    • June 27, 2005
    ...upon the evidence presented and the law at hand, the defendant's right to a fair trial is not violated. 114 P.3d 856 Carrillo v. People, 974 P.2d 478, 487 (Colo. 1999); People v. McCrary, 190 Colo. 538, 547, 549 P.2d 1320, 1328 (1976); People v. Buckner, 180 Colo. 65, 70, 504 P.2d 669, 672 ......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...for cause because it is in the best position to assess a potential juror's demeanor, credibility, and sincerity. Carrillo v. People, 974 P.2d 478, 485–86 (Colo.1999) ; Chavez, 313 P.3d at 600–01 ; 369 P.3d 607Roldan, 353 P.3d at 388. We will not disturb the trial court's decision unless it ......
  • Request a trial to view additional results
133 cases
  • Dunlap v. People, No. 04SA218.
    • United States
    • Colorado Supreme Court of Colorado
    • May 14, 2007
    ...his peremptory challenges. Macrander, 828 P.2d at 244. In such a situation, the error cannot be deemed harmless. Id.; Carrillo v. People, 974 P.2d 478, 486-87 (Colo.1999). Because Dunlap failed to exhaust his peremptory challenges, he has no claim that his substantial right to the use of hi......
  • State v. Galindo, No. S-04-443.
    • United States
    • Supreme Court of Nebraska
    • October 9, 2009
    ...Com. v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001). See, also, State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998); Carrillo v. People, 974 P.2d 478 (Colo. 1999); Stokes v. State, 281 Ga. 825, 642 S.E.2d 82 (2007); Powers v. State, 945 So.2d 386 (Miss.2006); State v. Jaynes, 353 N.C. 534, 5......
  • Medina v. People, No. 04SC167
    • United States
    • Colorado Supreme Court of Colorado
    • June 27, 2005
    ...upon the evidence presented and the law at hand, the defendant's right to a fair trial is not violated. 114 P.3d 856 Carrillo v. People, 974 P.2d 478, 487 (Colo. 1999); People v. McCrary, 190 Colo. 538, 547, 549 P.2d 1320, 1328 (1976); People v. Buckner, 180 Colo. 65, 70, 504 P.2d 669, 672 ......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...for cause because it is in the best position to assess a potential juror's demeanor, credibility, and sincerity. Carrillo v. People, 974 P.2d 478, 485–86 (Colo.1999) ; Chavez, 313 P.3d at 600–01 ; 369 P.3d 607Roldan, 353 P.3d at 388. We will not disturb the trial court's decision unless it ......
  • Request a trial to view additional results

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