People v. Abbott, 82SA550

• Decision Date: 13 November 1984
• Docket Number: No. 82SA550,82SA550
• Citation: 690 P.2d 1263
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terry Lee ABBOTT, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1263

690 P.2d 1263

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terry Lee ABBOTT, Defendant-Appellant.

No. 82SA550.

Supreme Court of Colorado En Banc.

Nov. 13, 1984.

Rehearing Denied Dec. 10, 1984.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Linda Hotes, Deputy State Public Defender, Denver, for defendant-appellant.

ROVIRA, Justice.

Terry Lee Abbott (defendant) was convicted of eleven counts of aggravated robbery, twelve counts of second-degree kidnapping, three counts of second-degree assault, three counts of third-degree assault, and one count of criminal trespass. He claims that the trial court erred in denying several challenges for cause during jury selection, in excusing a juror during the trial, in refusing to grant a mistrial because of a statement by a prosecution witness, and in refusing to grant his motion for judgment of acquittal on the kidnapping charges. He also claims that section 18-1-105(6), 8 C.R.S. (1978 & 1983 Supp.), is unconstitutional because it fails to specify guidelines to be used by a court when it imposes a sentence beyond the presumptive sentencing range, ¹ or, alternatively, that even if section 18-1-105(6) is constitutional, the trial court erred in sentencing the defendant outside the presumptive range. We affirm.

I.

The charges against the defendant arose out of the robbery of a King Soopers grocery store on March 21, 1980. The prosecution's evidence established that at approximately 1 a.m. on that date three armed men entered the rear storage area of the store. Each of the gunmen wore a mask, but was distinguishable from the others by physique, clothing, and weapons carried. One gunman was stocky, wore a brown jogging suit, and carried an automatic pistol. Another was short and of medium build, wore a green army jacket, and carried a .38 caliber revolver. The third man was tall and slender, wore bluish clothing and blue shoes, and carried a long barreled revolver. This man was identified as the defendant.

After the robbers entered the building, they ordered the thirteen employees into a back room and forced them to lie face down on the floor. After being told by the store manager that the safe could not be opened because it was operated by a time lock, the robbers proceeded to take money from the store register as well as money and jewelry from the individual employees. As the employees were being robbed, they were hit or kicked by at least one of the robbers, and several suffered physical injury as a result. During the time these events were taking place, another employee arrived at the store and observed the robbery taking place. He immediately left and notified the police.

After the gunmen robbed the employees, they discussed what to do next, including what should be done with the employees. The manager of the store, Sam Booras, suggested that the employees should be put into a trailer which was located at a loading dock outside the back room. The employees were then forced to crawl into the trailer, instructed to lie face down, and the trailer door was closed. At this time, the police arrived. One of the gunmen was shot after pointing his weapon at the police. The wounded gunman and the defendant were arrested inside the store within minutes after the police arrived.

II.

The defendant argues that the trial court's denial of his challenges for cause to four potential jurors deprived him of his constitutional right to a fair and impartial jury. U.S. Const. amend. XIV; Colo. Const. art. II, § 16. The decision of a trial judge, in denying a challenge for cause, will be upheld unless a gross abuse of discretion is demonstrated. People v. Taggart, 621 P.2d 1375, 1383 (Colo.1981); People v. McCrary, 190 Colo. 538, 547, 549 P.2d 1320, 1327 (1976); Leick v. People, 136 Colo. 535, 545, 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S.Ct. 1363, 2 L.Ed.2d 1366 (1958).

Here the four potential jurors underwent an extensive voir dire by counsel and the court. The first juror who the defendant contends should have been excused for cause was Wilma Sprague. Sprague stated that in 1960 her family owned several stores, one of which was robbed at gunpoint. She also informed the court that her home had been burglarized, that her mother had once been accosted by an armed juvenile, and that in the late sixties a ranch she and her husband owned had been guarded by agents of the Federal Bureau of Investigation because of a sale of horses to persons who were later charged and convicted of a crime.

In response to questions by defense counsel and the court, Sprague said that she would follow the instructions of the court and be a fair and impartial juror. The defendant challenged Sprague for cause. The trial court denied the challenge, and the defendant exercised his second peremptory challenge to excuse the juror.

The second juror was Judith Smith. Smith stated she didn't like guns, wouldn't allow her children to play with guns, and favored stricter gun control. In response to a question by defense counsel as to whether she thought it would be fair to a defendant to have "twelve jurors of your frame of mind on guns sitting on a case" that would involve guns, Smith responded, "No." However, she later stated that she would follow the instructions of the court, try her best to put aside any feelings she had about guns, and be a fair and impartial juror. The defendant challenged the juror for cause, and the challenge was denied.

The third juror, Roslyn Schafer, stated that she planned to move to Ohio in approximately two weeks. Under questioning by defense counsel, Schafer admitted to being concerned about the details of the move and the effect it would have on her ability to concentrate on the trial. The next day defense counsel resumed questioning of Schafer. In response to counsel's question as to whether jury service would be a hardship, she stated: "Like everyone else it is not really the right time. The same thing that I said yesterday, as far as concentrating I hope I can but I can't say definitely just because I know there are a lot of things to think about right now, especially if [the trial] goes to next weekend." Counsel's last question was: "Would it be fair to say this: You're willing to give us the time, you are willing to serve if you are asked but there is some doubt in your mind as to whether you could give it your complete attention?" In response, Schafer replied: "That's about it, ...." The defendant's challenge for cause was denied.

The fourth juror was Mary Nims. During voir dire, Nims admitted reading about the robbery and forming an opinion that the robbery had taken place. She further stated that she was appalled by this kind of robbery, but had no opinion as to whether the defendant was guilty or innocent. The defendant challenged Nims for cause. The challenge was denied.

Additional questions of Nims established that her home and hotel room had been burglarized on several occasions. However, she was of the opinion that she would be fair and impartial. A renewed challenge for cause was denied, based on the court's opinion that the juror's answers reflected that she could be fair and impartial. Nims was seated as the first alternate juror, the defendant having exhausted all of his peremptory challenges. ²

The defendant argues that Sprague should have been excused for cause because the cumulative effect of her experiences with robberies would make it difficult for her to be an objective juror. He also claims that Smith should have been excused because her strong feelings against guns might affect her ability to be fair. Although the defendant did not expressly state any grounds to the trial court as to why Schafer should be excused, he now argues that his challenge for cause should have been granted because of Schafer's doubt about her ability to concentrate due to her pending move. Last, the defendant contends that Nims should have been excused because of her opinion that the robbery had taken place, and because she had been the victim of five burglaries.

There can be no doubt that a defendant accused of a crime has a fundamental right to a trial by jurors who are fair and impartial. The responsibility of assuring that the jurors selected meet this standard is, in the first instance, vested in the trial judge: "It is the trial court which hears the questions put to the juror and the answers given, observes the juror's demeanor while being questioned, and discerns the truthfulness, the sincerity, and the dedication to the high responsibility involved in being a fair and impartial juror." People v. McCrary, 190 Colo. 538, 547-48, 549 P.2d 1320, 1327-28 (1976). The trial judge's decision to deny a challenge for cause will not be disturbed on appeal in the absence of a gross abuse of discretion. See, e.g., People v. Taggart, 621 P.2d 1375, 1383 (Colo.1981).

In determining whether the trial judge grossly abused his discretion, the entire voir dire examination of the potential juror must be reviewed. The test to be used in determining whether a juror should be excluded is "whether [the juror] would render a fair and impartial verdict based on the evidence presented at trial and the instructions given by the court." People v. Wright, 672 P.2d 518, 520 (Colo.1983). The fact that some evidence arose during voir dire which might indicate that the potential juror is prejudiced does not necessitate excusing him when challenged for cause. See People v. Taggart, 621 P.2d 1375 (Colo.1981) (strong aversion to a particular crime does not automatically disqualify a prospective juror); People v. Ward, 673 P.2d 47 (Colo.App.1983) (no abuse of discretion in denying challenge for cause in an aggravated robbery case where potential juror admitted he had bias against handguns, had a brother-in-law...