People v. Agado, 96CA0427

• Decision Date: 05 February 1998
• Docket Number: No. 96CA0427,96CA0427
• Citation: 964 P.2d 565
• Parties: 98 CJ C.A.R. 584 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jody M. AGADO, Defendant-Appellant.
• Court: Colorado Court of Appeals

Page 565

964 P.2d 565

98 CJ C.A.R. 584

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jody M. AGADO, Defendant-Appellant.

No. 96CA0427.

Colorado Court of Appeals.

Feb. 5, 1998.

Rehearing Denied March 5, 1998.

Certiorari Denied Oct. 19, 1998.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Catherine P. Adkisson, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge PLANK.

Defendant, Jody Agado, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. We affirm.

On the night before the shooting at issue, an argument between defendant and his girlfriend, with whom he was living, resulted in an agreement between them to live apart, but to date each other exclusively.

The next morning, defendant moved into his parents' home. That evening, defendant went out with a friend, taking his semi-automatic weapon with him. During the evening he consumed substantial amounts of alcoholic drinks.

Defendant's girlfriend also went out that evening, leaving a male friend at her apartment to baby-sit her children. Sometime after 2:00 a.m., defendant returned to his parents' home, called his girlfriend's apartment, and talked to the baby-sitter.

Moments later, defendant's girlfriend called him and he became upset. Carrying his semi-automatic weapon, he left his parent's house.

When defendant arrived at his girlfriend's apartment, the baby-sitter opened the door. Defendant raised the gun, which then discharged. The baby-sitter was struck and fatally injured by the gunshot. Defendant fled to his parents' home, and told them that the shooting was an accident. He thereafter went to the police station, and the criminal prosecution here at issue followed.

I.

Defendant first contends that the trial court erred in admitting evidence of the domestic argument as res gestae evidence of the charged offense. We disagree.

Before trial, the prosecution filed a motion in limine to admit evidence of the argument that defendant had with his girlfriend the night before the shooting. The prosecution argued that such evidence was admissible either as res gestae evidence of the offense charged or as a prior act, pursuant to CRE 404(b), to establish motive, intent, deliberation, and absence of mistake or accident.

After a hearing, the trial court found such evidence, including evidence that defendant had fired his weapon into the air earlier on the night of the shooting, to be admissible as res gestae evidence.

Evidence of other offenses or acts that form part of the criminal episode or transaction with which a defendant is charged is admissible to provide the fact-finder with a full understanding of the events surrounding the crime. People v. Quintana, 882 P.2d 1366 (Colo.1994). Such res gestae evidence includes criminal conduct that is part and parcel of the crime charged or provides a background for the offense. People v. Allen, 944 P.2d 541 (Colo.App.1996).

Res gestae evidence need not meet the procedural requirements of evidence introduced pursuant to CRE 404(b). Before admitting res gestae evidence, however, 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).

The Colorado Rules of Evidence strongly favor the admission of material evidence, People v. Czemerynski, 786 P.2d 1100 (Colo.1990), and a trial court has substantial discretion in deciding questions concerning the admissibility of evidence. People v. Ibarra, 849 P.2d 33 (Colo.1993).

Here, evidence of the argument between defendant and his girlfriend on the night before the shooting provided the jury with a fuller understanding of the events surrounding the crime.

Contrary to defendant's argument, we conclude that the trial court, after weighing the evidence before it, did not abuse its discretion in finding the evidence of that argument to be "part and parcel" of the entire event. Thus, the challenged evidence was properly admitted as res gestae.

II.

Defendant next argues that the trial court erred by refusing to declare a mistrial because the jury's consideration of the mens rea element was poisoned by an unfair demonstration of the shooting and by the jury's own experiment with the weapon. We disagree.

Defendant testified at trial. During cross-examination, he was asked to demonstrate how he had held the gun when it discharged. Defendant stated that he could not hold the gun as he had on the night of the shooting because his middle finger was broken. Over objection, he was instructed to proceed with the demonstration and to pull the trigger. On redirect examination, defendant explained that his broken finger had prevented him from demonstrating the trigger pull as it had actually occurred when the victim was shot.

Over objection, the prosecutor suggested during closing argument that the jurors test the trigger pull. The trial court overruled the objection but acknowledged that the trigger pull would seem different to each individual. The jury was subsequently permitted to examine the gun during deliberations.

Defendant's motion for a mistrial was denied. He claims that he suffered prejudice as a result of his inaccurate demonstration and each juror's subjective examination of the trigger pull. We are not persuaded.

A trial court has broad discretion in deciding whether to grant or deny a mistrial, and its decision will not be disturbed on appeal absent a gross abuse of discretion and prejudice to the defendant. A mistrial is a drastic remedy and is warranted only if the prejudice to the defendant cannot be remedied by other means. People v. Abbott, 690 P.2d 1263 (Colo.1984).

The admission or exclusion of evidence of an experiment rests largely in the discretion of the trial court. An experiment is not rendered inadmissible solely because it is based on a disputed reconstruction of the crime. People v. McCombs, 629 P.2d 1088 (Colo.App.1981). Pursuant to CRE 403, a witness may be required to display evidence before the jury if the probative value of such evidence outweighs any prejudicial impact. See People v. Martin, 791 P.2d 1159 (Colo.App.1989).

Similarly, the jury's access to demonstrative evidence is within the discretion of the trial court. See May v. People, 77 Colo. 432, 236 P. 1022 (1925). Subject to certain exceptions, exhibits which have been admitted into evidence may be used by the jury during its deliberations. See People v. Melanson, 937 P.2d 826 (Colo.App.1996).

Here, the jury was presented with evidence of the gun's malfunction, defendant's inexperience with the gun, and defendant's intoxication on the night of the shooting. Defendant testified that he had a friendly relationship with the victim, that the shooting was an accident, and that he did not recall whether he had pulled the trigger when the victim was shot. Thus, defendant's demonstration assisted the jury in assessing the contested issue of whether the shooting was an accident.

Further, we agree with the trial court that any prejudice flowing from defendant's demonstration of the trigger pull was ameliorated by his explanation at trial and the cast on his hand that was visible to the jury.

Under these circumstances, we conclude that the trial court did not abuse its discretion by proceeding with defendant's demonstration, allowing the jury to examine the weapon, or denying defendant's motion for mistrial.

III.

Defendant also contends that the trial court's denial of his motion to prohibit testimony of his parents at trial impermissibly infringed upon his constitutional and common law rights. We disagree.

Claiming a constitutional right to family privacy and a common law parent-child privilege as to confidential family communications, defendant sought to prohibit evidence of all statements he made to his parents following the shooting. After a hearing, the trial court denied his motion as to this issue.

Defendant concedes that a parent-child privilege has not been created by the General Assembly. However, he contends that the trial court here failed to acknowledge the "constitutional and common law underpinnings" of such a privilege, and urges this court to adopt a parent-child privilege based upon the reasoning of People v. Fitzgerald, 101 Misc.2d 712, 422 N.Y.S.2d 309 (1979) (parent-child privilege flows from United States and New York Constitutions) and In re Agosto, 553 F.Supp. 1298 (D.Nev.1983) (parent-child privilege is based upon the confidential nature of specific communications between parent and child and upon the privacy which is a constitutionally protectable interest of the family in American society).

Testimonial privileges are not lightly created nor expansively construed, for they are in derogation of the search for truth. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The majority of jurisdictions that have considered adopting a parent-child privilege have declined to do so. See United States v. Davies, 768 F.2d 893 (7th Cir.1985).

Section 13-90-107, C.R.S.1997, which sets forth Colorado's statutory privileged communications, does not include a parent-child privilege. Such privileges are strictly construed, and the burden of proving that a communication is protected by a privilege is upon the person asserting the privilege. People v. District Court, 743 P.2d 432 (Colo.1987).

We decline defendant's invitation to adopt a parent-child privilege. Contrary to defendant's argument, we conclude that the trial court's denial of defendant's motion as to this issue did not impermissibly infringe upon his constitutional and common law rights.

IV.

Lastly, defendant contends that the cumulative effect of the errors committed by the trial...