Hanes v. People
| Citation | 198 Colo. 31,598 P.2d 131 |
| Decision Date | 11 June 1979 |
| Docket Number | No. C-1534,C-1534 |
| Parties | William Robert HANES and Charles David Poole, Petitioners, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Supreme Court of Colorado |
J. Gregory Walta, Colo. State Public Defender, Craig L. Truman, Chief Deputy State Public Defender, Gene Beville, Sp. Deputy Public Defender, Denver, for petitioners.
John D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Linda Palmieri Rigsby, Nathan B. Coates, Asst. Attys. Gen., Denver, for respondent.
The petitioners, William Hanes and Charles Poole, were convicted of second-degree forgery in the District Court of El Paso County. The Colorado Court of Appeals, 596 P.2d 395, (Colo.App. 1978), affirmed the convictions on January 5, 1978. We granted certiorari, and we now affirm the court of appeals.
The charges center around the petitioners' use of a gasoline credit card issued to Mr. Marvin Hancock. The evidence at trial shows that Mr. Hancock gave the card and permission to use it to Rebecca Barton. She used the card freely to purchase gasoline products for herself and her friends, signing the card as Mrs. Marvin Hancock. The manner in which the petitioners came into possession of the card is disputed. Ms. Barton testified that she threw the card away, that Charles Hanes, the brother of petitioner Hanes, picked it up and told her he would throw it away, and that she responded "okay." Petitioner Hanes, Charles Hanes and others testified that Ms. Barton Gave the card to Charles Hanes and told him he could use it as he wished.
Petitioner Hanes admitted that he had used the card. Petitioner Poole did not testify at trial, but experts matched his handwriting with signatures on several credit card invoices. Both petitioners signed Marvin Hancock's name when they made purchases. After receiving a large bill, Mr. Hancock notified the issuer that his credit card had been stolen. The petitioners were apprehended and charged under section 18-5-103, C.R.S.1973 ), with second-degree forgery.
The jury found William Hanes guilty of twelve counts of second-degree forgery for purchasing $135.48 worth of products with the credit card. Charles Poole was found guilty of five counts of second-degree forgery for purchasing $70.22 worth of products with the card. The petitioners here assert several errors in the trial court. We address only two of the issues raised below. We do not address the constitutional issue because it was not raised on appeal.
The petitioners first contend that the trial court erred in refusing to excuse for cause jurors Masters and Moon and in refusing to grant a new trial on the grounds that the impartiality of the jury had been tainted. During the trial, juror Masters informed the court that petitioner Poole resembled a tenant who had formerly rented an apartment from her company and had left the place "in a shambles." The court and counsel Voir dired juror Masters In camera. There it was disclosed that, for a number of reasons, the former tenant had created a very bad impression on juror Masters, but that she did not have a definite opinion at that time as to whether the tenant and petitioner Poole were the same person.
The court instructed her that if, at any time during the trial, she felt that Poole was this former tenant, she was under a Continuing duty to disclose such information to the court. She did not further communicate with the court, and the petitioner's challenge for cause was denied.
Petitioners claim that the court's denial of their challenge for cause of juror Masters, given the availability of an alternate juror, denied them fundamental fairness. They cite as decisive on this issue this court's holding in Beeman v. People, 193 Colo. 337, 565 P.2d 1340 (1977).
However, we find that Beeman supports a result exactly opposite that urged by the petitioners. In Beeman, we stated the axiomatic principle that a trial court is given maximum liberty in assessing the impartiality of the jurors:
"The enormous practical problems involved in these assessments (of impartiality of jurors) have led to our vesting of great discretion in the trial court, (citations omitted) . . . ." Id. at 339, 565 P.2d at 1342.
We then held that "at some point, this court will say that the judgment made by the trial court was error." That point was reached in Beeman. In that case, the defendant was being tried for rape and deviate sexual intercourse. The challenged juror disclosed In camera that she believed the defendant may have been a man who had greatly upset her pregnant daughter and thought it possible that a pearl handled knife allegedly used in the rape was the same knife that was missing from her daughter's home. In the face of such clearly prejudicial circumstances, we held that the trial court had abused its discretion in not removing the juror for cause.
In the instant case, however, the facts are not so extreme. Rather, we think appropriate precautions were taken by the court to ensure the impartiality of juror Masters. Juror Masters assured the court that she could act impartially. By virtue of the fact that she did not contact the judge after the In camera hearing, she obviously concluded that petitioner Poole was not her former tenant. We see no abuse of discretion in the trial court action on this issue.
The trial court also denied a motion to discharge for cause juror Moon, who had closed his eyes and revolved his head on various occasions during the several day trial. On the morning of the last day, the court noted that juror Moon had again closed his eyes, and it questioned juror Moon as to whether he was awake. The juror responded immediately that he had a headache and was in the habit of listening with his eyes closed. The court accepted this explanation and denied petitioner Hanes' offer of proof regarding juror Moon's sleeping in the courtroom. The petitioners claim that the court abused its discretion in not excusing juror Moon.
Again we believe that the judgment of the trial court must be honored. The judge had been alerted to the possibility that juror Moon may have been sleeping during the presentation of evidence. He was in an advantaged position to watch the juror during trial to determine whether that possibility was true, and he commented that he had in fact watched juror Moon. He questioned the juror at a time when he felt the juror may have been asleep, but found him to be awake and attentive. We do not think these facts point to an abuse of discretion by the trial court in denying petitioners' challenge for cause.
The petitioners also urge that the trial court erred in not granting their motion for a new trial on the grounds that two of the jurors (Gustofson and Edmonds) could not have acted impartially because of certain remarks made by a different judge in a different case in which they had previously served as jurors. After the prior case had terminated in a hung jury and a mistrial, the judge had...
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State v. Smith
...65 Cal.Rptr.2d 145, 939 P.2d 259 (1997), cert. denied, 523 U.S. 1118, 118 S.Ct. 1796, 140 L.Ed.2d 937 (1998); Hanes v. People, 198 Colo. 31, 598 P.2d 131 (1979) (en banc); Mirabel v. State, 182 So.2d 289 (Fla.Dist.Ct.App.1966); Williams v. State, 190 Ga.App. 361, 378 S.E.2d 886 (1989); Chub......
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State v. Wiggins, 4022
...States v. Holder, 652 F.2d 449, 451 (5th Cir.1981); United States v. Cameron, 464 F.2d 333, 334-35 (3d Cir.1972); Hanes v. People, 198 Colo. 31, 34, 598 P.2d 131 (1979); State v. Kimmel, 202 Kan. 303, 305, 448 P.2d 19 (1968); Commonwealth v. Jones, 314 Pa.Super. 497, 499, 461 A.2d 267 (1983......
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Stokes v. State
...507 A.2d 518 (1986); State v. Lesley, 672 P.2d 79 (Utah 1983); People v. Hanes, 42 Colo.App. 527, 596 P.2d 395 (1978), aff'd, 198 Colo. 31, 598 P.2d 131 (1979); State v. Johnson, 463 So.2d 620 (La.App.1984), or found that the juror was asleep for such a brief time that no prejudice occurred......
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