People v. Arevalo

• Decision Date: 17 April 1986
• Docket Number: No. 84CA0007,84CA0007
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel AREVALO, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 41

725 P.2d 41

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel AREVALO, Defendant-Appellant.

No. 84CA0007.

Colorado Court of Appeals,

Div. III.

April 17, 1986.

Rehearing Denied May 15, 1986.

Certiorari Denied (Arevalo) Sept. 29, 1986.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eric Perryman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Public Defender, Claire Levy, Deputy Public Defender, Denver, for defendant-appellant.

VAN CISE, Judge.

Defendant, Daniel Arevalo, appeals from the judgment entered upon a jury verdict finding him guilty of third degree assault and knowing child abuse resulting in death. We affirm.

On December 28, 1982, Cecelia Sopher reported to a Boulder County deputy sheriff that she believed her nephew, 3-year-old Michael Manning, was missing. Sopher's sister, Elizabeth Manning, had not allowed Sopher to see or talk to Michael since October 31, 1982.

At the time Manning lived in an apartment in a housing project in Boulder with Michael, her 12-year-old daughter Tricia, and with defendant Arevalo. He had apparently moved in with Manning the previous summer.

Upon inquiry by the police, Manning claimed Michael was with friends. The police obtained a warrant and searched the premises, but did not find Michael. In the boy's bedroom, however, they found the closets empty, the mattress bare, and clothing for a small male child in bags on the bed.

The next morning Manning was served a court order to appear that afternoon in district court with Michael. She failed to produce him, and again failed to produce him in court the next morning, as ordered by the judge. She was found in contempt and jailed.

Arevalo was arrested April 11, 1983. On April 12, a body later identified as Michael Manning was discovered buried in a field in Boulder.

Prior to commencement of trial in Boulder County, Arevalo filed a motion to change venue, claiming he could not receive a fair or expeditious trial there. The parties stipulated to a change of venue to Adams County.

Jury selection began in Adams County on August 15. For reasons not pertinent to this appeal, a mistrial was declared five days later. Arevalo then filed a second motion for change of venue, which the court denied.

Jury selection began again. Prior to opening statements, Arevalo filed a third motion for change of venue, contending that massive, pervasive, and prejudicial pre-trial publicity had contaminated the jury venire. The court denied the motion.

Two witnesses testified that they had observed Arevalo physically punishing Michael in November 1982. One friend of Arevalo's saw him slap Michael's face for urinating in his pants. Other witnesses testified they observed bruises on Michael, saw signs of neglect, and saw Manning beat her child.

Tricia Manning testified she saw Arevalo slap Michael's rear end for a lapse in his toilet training. She also saw Arevalo force Michael to drink seven to ten tall glasses of water as punishment for wetting his pants. Tricia testified Arevalo also "smacked" Michael when Michael disobeyed an order to stay on the couch. She also saw Arevalo confine Michael to his room as punishment for wandering into and playing in a drug store. On another occasion she looked through a hole in the wall between her room and Michael's room and saw Arevalo bending over Michael "telling him not to go to the bathroom in his pants." She could hear the dull sounds of hitting and Michael crying.

The physical evidence introduced at trial revealed a large red stain on the floor inside the cold air return vent in Manning's apartment. An expert in hair comparison testified that different hairs found on Michael's body and on the material with which the body was wrapped matched Arevalo's and Manning's hair. A pathologist was not able to determine the cause of death, but testified that Michael had been bruised on the right part of his buttocks and on the back of his right thigh. A mineralogist matched samples of soil from Michael's grave site to dirt from the shovel in the back of Arevalo's truck.

Two inmates at the Adams County Jail testified that Arevalo made incriminating statements while he was detained there. The testimony of the first inmate was stricken later because the prosecution knew it to be false. The second inmate, Joseph Henslik, testified that he and Arevalo had a conversation through a vent between their cells. According to Henslik, Arevalo asked him whether Colorado recognized common law marriages and whether his wife could testify against him if she had given a written statement. He allegedly asked Henslik whether Manning would be equally as guilty as he if she had helped him bury the body. Henslik testified Arevalo admitted that he and Manning buried Michael together to insure that one could not tell on the other. Arevalo also allegedly told Henslik, "I don't know if I killed him or not because I threw the kid around a lot and she picked him up later and put him in something like a pillow case and threw him in a dryer." Henslik was not sure if Arevalo said "dryer" or "higher." Henslik also testified Arevalo called Michael a "sacrifice" and said Manning would have "cut him loose" if he had not done "something" to Michael.

Henslik said that, as a protective measure against other inmates, he told them he was going to lie under oath to get relief from charges pending against him. Also, Arevalo's defense witnesses testified that Henslik was a known liar.

The prosecution presented witnesses who testified that Elizabeth Manning had had another son, Christopher Cheesum, born in Baltimore, Maryland, in February 1974. That baby was not seen after about six months. Manning had claimed the child was admitted into Johns Hopkins Hospital with a heart murmur, pinched spinal column, and severe retardation. The parties stipulated that the records of Johns Hopkins did not reflect a Christopher Cheesum ever being admitted.

At the close of the prosecution's case, Arevalo moved for judgment of acquittal on all counts. The trial court granted the motion in part. The first degree murder count was dismissed, but the case proceeded on a criminally negligent homicide charge. The charge of child abuse resulting in death was retained. The court granted the motions for judgment of acquittal of assault in the first degree and assault in the second degree, but let the case proceed to the jury on the lesser included offense of assault in the third degree. The motion for judgment of acquittal on the charge of accessory to a crime was denied, but that charge was dismissed later after the defense presented its case.

The jury returned a verdict of not guilty of criminally negligent homicide, and guilty of knowing child abuse resulting in death and third degree assault.

I.

On appeal, Arevalo first contends the trial court erred in denying his motions for change of venue from Adams County. He argues that the community was so infected by massive, pervasive, and prejudicial pretrial publicity that he could not get a fair trial there. He also argues that the record on jury selection shows deep prejudice against him in the community.

A defendant has a constitutionally protected right to be tried by impartial jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). A criminal case, however, will likely generate public interest, and it is not unusual for potential jurors to have heard or read something about the case, People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976). It is not necessary that jurors be totally unfamiliar with the facts of the case if they are able to lay aside the information and opinions they may have received through pretrial publicity. McCrary, supra. "The mere existence of extensive publicity, by itself, does not trigger a due process entitlement to change of venue." People v. Bartowsheski, 661 P.2d 235 (Colo.1983); People v. Thornton, 712 P.2d 1095 (Colo.App.1985) (cert. granted on other grounds January 21, 1986).

A.

Arevalo contends the publicity was so "massive, pervasive and prejudicial" as to create a presumption that he was denied a fair trial. We do not agree.

It is only in rare cases that a denial of fair trial because of publicity will be presumed. The presumption has been applied in only one case in Colorado, Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969), and the pretrial publicity in Walker was much greater and more vituperative than here.

In Walker, the two major Denver papers and the Boulder paper extensively covered the investigation and trial associated with the rape and murder of a University of Colorado coed. One Denver paper hired famous criminologists and the author of the "Perry Mason" books to assist in the investigation. One published pictures of how the "frenzy-filled eyes" of the killer might have looked. Prayers were interspersed through the articles. One paper inaccurately reported that the defendant Walker had confessed and that polygraph tests proved his exculpatory statements to be lies. In short, the papers' reporting amounted to an attack on Walker. Moreover, the trial judge in Walker refused to hear any evidence as to the press coverage.

In the instant case, the trial court made extensive findings on factors ranging from volume of coverage to publication of inadmissible facts to assess whether any presumption of prejudicial publicity precluding a fair trial existed. Those factors emerged from previous Colorado cases, including People v. Bartowsheski, supra; People v. Botham, 629 P.2d 589 (Colo.1981); and People v. McCrary, supra. A review of the newspaper articles pertaining to the instant case convinces us that the trial court was correct in its determination.

Admittedly, the Denver television stations and the two Denver newspapers carried a great deal of coverage on the incident, investigation, and trial. Some of the coverage was on the front pages. Editorials...