People v. Banks, 08CA0105.

• Decision Date: 27 September 2012
• Docket Number: No. 08CA0105.,08CA0105.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Tenarro BANKS, Defendant–Appellant.
• Court: Colorado Court of Appeals

412 P.3d 417

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Tenarro BANKS, Defendant–Appellant.

No. 08CA0105.

Colorado Court of Appeals, Div. II.

Sept. 27, 2012.

Rehearing Denied Nov. 29, 2012.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, CO, for Plaintiff–Appellee.

Samler & Whitson, P.C., Eric A. Samler, Hollis A. Whitson, Denver, CO, for Defendant–Appellant.

Opinion by Judge GRAHAM.

¶ 1 Defendant, Tenarro Banks, appeals his judgment of conviction entered upon a jury verdict finding him guilty of first degree murder and his sentence of life imprisonment without parole. We affirm the judgment, affirm the sentence in part and vacate it in part, and remand to the trial court for resentencing.

I. Background

¶ 2 On December 11, 2004, defendant, then age fifteen, attended a house party in a neighborhood connected with the Tre Tre Crips gang. Defendant was a member of the gang. Defendant confronted the sixteen-year-old victim about his wearing colors of the rival Bloods gang, and the owner of the house ended the party asking party-goers to leave. Once outside, defendant shot and killed the victim.

¶ 3 Defendant was charged as an adult with first degree murder after deliberation pursuant to section 18–3–102(1)(a), C.R.S.2012. The first jury trial resulted in a mistrial. On December 4, 2007, following a second jury trial, defendant was convicted and sentenced to life imprisonment without parole, pursuant to section 18–1.3–401(1)(a)(V)(A) and (4), C.R.S.2012.

II. Issues on Appeal

¶ 4 Defendant raises eight issues on appeal, arguing that (1) the trial court erred in denying his motion for mistrial and permitting the prosecution to question a witness regarding an assertion of the privilege against self-incrimination; (2) the trial court erred in denying two motions for mistrial and admitting five recorded statements containing inadmissible material; (3) the trial court violated defendant's federal and state constitutional rights to due process and to confront witnesses; (4) the trial court erred by permitting the prosecution to repeatedly refer to a known gang member who was a defendant in an unrelated high-profile murder case; (5) the trial court erred in permitting testimony about a witness's agreement to take a polygraph test; (6) the trial court violated defendant's right to a fair and impartial jury when it denied his challenges for cause regarding two jurors; (7) the cumulative impact of the errors at trial violated defendant's right to a fair trial; and (8) the mandatory sentence of life imprisonment without parole constitutes cruel and unusual punishment and violates defendant's rights to equal protection and due process. We address each contention in turn.

A. Motion for Mistrial: Testimony Regarding Right to Silence

¶ 5 We reject defendant's first assertion that the trial court erred by denying his motion for mistrial based upon the prosecution's questioning of Gregory Strickland about the invocation of his Fifth Amendment privilege against self-incrimination.

1. Standard of Review

¶ 6 We review a trial court's denial of a motion for a mistrial for abuse of discretion. Dunlap v. People, 173 P.3d 1054, 1091 n. 39 (Colo.2007). An abuse of discretion occurs only if a ruling is manifestly arbitrary, unreasonable, or unfair. People v. Welsh, 176 P.3d 781, 790 (Colo.App.2007). "A mistrial is warranted only if the prejudice to the defendant is so substantial that it cannot be remedied by other means." People v. Lehmkuhl, 117 P.3d 98, 104 (Colo.App.2004) (citing People v. Abbott, 690 P.2d 1263 (Colo.1984) ).

2. Facts

¶ 7 Gregory Strickland, a friend of defendant, had been sentenced to eight years in the Arapahoe County Jail for aggravated robbery. While incarcerated, Strickland was facing further charges and disciplinary action by the jail when he was found with a weapon (a "shank") in his possession. He then wrote a note to his jailers, seeking special dispensation in exchange for information (a "kite"). In the kite he described in detail the facts and events of the shooting and named defendant as the shooter. He did not sign the kite, and it is disputed whether he gained this knowledge first hand, through his contacts from jail, or otherwise.

¶ 8 The following day, Strickland was contacted by Detective Castro. He gave the detective a recorded statement that followed the facts of his kite. Afterward, the jail enforced only minimal disciplinary action against Strickland.

¶ 9 At defendant's first trial, which resulted in a mistrial, Strickland was not granted immunity and testified that he lied in the kite and his statement to Detective Castro. At the second trial, Strickland invoked his privilege against self-incrimination, and the prosecution requested witness immunity pursuant to section 13–90–118, C.R.S.2012. The court agreed and issued an order compelling Strickland to testify.

¶ 10 On direct examination, Strickland stated that he did not want to testify and that he had been subpoenaed and granted immunity. He agreed that he had been interviewed by Detective Castro on audiotape in October 2005 but testified that either he did not remember the statements he made or he had lied to Detective Castro. He further testified that he lied in the kite because he "had got caught with a shank."

¶ 11 On cross-examination, Strickland again testified that he was testifying under immunity, and he agreed that he had similarly testified at the first trial without immunity. He further testified that he had been approached on two different occasions, one being that very morning, by an investigator from the district attorney's office, who suggested his former trial testimony was untrue and threatened to file charges against him if he did not testify consistently with his recorded statements.

¶ 12 On redirect examination, the prosecutor asked Strickland, "You were advised this morning by the DA investigator that you had a right of self-incrimination [sic], didn't you?" In a bench conference, the prosecutor explained that he wanted to inquire about Strickland's interaction with the investigator and his "assertion of the Fifth" in order to rebut the cross-examination. The trial court responded that it would "allow some limited inquiry."

¶ 13 Redirect examination resumed, and Strickland agreed that "after [he] met with the DA investigator, the Court appointed [him] an attorney." The prosecutor then asked, "And after meeting with [the defense attorney], you decided you wanted to assert your Fifth Amendment right to protect yourself from incrimination?" Strickland did not answer the question.

¶ 14 In another bench conference, defense counsel objected to the fact that Strickland would be "asserting his Fifth in front of the jury," which was "the whole thing [counsel] tried to avoid in the first place." The prosecutor responded, "This is rebuttal exactly to the whole charge he brought up, the whole immunity fact ... he says he has to protect himself because he's lying." At that point, defense counsel moved for a mistrial. While the court denied the motion, it responded, "[W]e are on shaky ground here. You can indicate he was granted immunity, don't go much beyond that."

3. Analysis

¶ 15 "The Fifth Amendment provides a witness with a privilege to decline to answer questions if the answers would incriminate him or her." People v. Smith, 275 P.3d 715, 720 (Colo.App.2011) ; see U.S. Const. amend. V ; see also Colo. Const. art. 2, § 18. "[A] prosecutor commits reversible error if, knowing that an accomplice will claim the privilege against self-incrimination, he calls the accomplice to the stand for the purpose of extracting the claim of privilege from him." People v. Newton, 966 P.2d 563, 569 (Colo.1998) (quoting Billings v. People, 171 Colo. 236, 242, 466 P.2d 474, 477 (1970) ).

¶ 16 Initially, we distinguish the case at hand from Newton. In Newton, the prosecution called the witness to the stand "for the purpose of extracting the claim of privilege." Id. The witness then invoked his Fifth Amendment privilege a total of fifteen times during examination. Id. at 571.

¶ 17 Here, the prosecution did not call Strickland to the stand to extract the claim of privilege. In fact, the prosecution did not raise the subject on direct, inquiring only into Strickland's grant of immunity. Defense counsel then cross-examined him extensively about that immunity, suggesting that Strickland had lied in the kite but told the truth at the first trial. On redirect examination, the prosecutor asked about the privilege for the purpose of "rebuttal exactly to the whole charge that he brought up, the whole immunity fact himself in his cross-examination." In other words, the prosecutor sought to rebut the defense theory that Strickland's testimony about lying was truthful. The prosecutor sought to show that with immunity, Strickland had no need to fear prosecution.

¶ 18 We note from the record that Strickland never invoked his Fifth Amendment privilege on the stand. While the prosecution asked Strickland, "And after meeting with [the defense attorney], you decided you wanted to assert your Fifth Amendment right to protect yourself from incrimination?" Strickland never answered the question, and the prosecution did not mention the issue of privilege again for the remainder of trial.

¶ 19 In light of the fact that Strickland did not invoke his Fifth Amendment privilege at trial, we discern no reason to apply the Newton factors to our analysis here. See id. at 569–70.

¶ 20 Furthermore, we perceive no prejudice to defendant based on this inquiry. One policy behind the prohibition against asking a witness about invoking the privilege is to prevent the jury from drawing a negative inference about the witness's character or credibility. See People v. Welsh, 58 P.3d 1065, 1070 (Colo.App.2002), aff'd, 80 P.3d 296 (Colo.2003).

¶ 21 Here, Strickland's credibility was impeached by his admission to having three prior felony convictions, see §...