People v. Benjam (In re Reed)
| Decision Date | 01 August 2013 |
| Docket Number | Court of Appeals No. 08CA2700 |
| Citation | 338 P.3d 364 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. John Benjamin REED, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
Affirmed in part, reversed in part, and remanded.
Arapahoe County District Court No. 07CR2515, Honorable Carlos A. Samour, Jr., Judge
John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Douglas K. Wilson, Colorado State Public Defender, Nathaniel E. Deakins, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant
Opinion by JUDGE FOX
¶ 1 A jury convicted defendant, John Benjamin Reed, of second degree murder, aggravated motor vehicle theft, criminal possession of a financial device—four or more devices and two different names, and theft. He appeals his conviction, contending the trial court erred in (1) denying his motion for a new trial; (2) admitting res gestae evidence; (3) admitting hearsay evidence under a statutory exception; (4) denying his motion for judgment of acquittal on the charge of criminal possession of a financial device—four or more devices and two different names; and (5) aggravating his sentences.
¶ 2 Except as to the fourth contention, we affirm. As to the denial of the motion for judgment of acquittal, we conclude that the evidence was insufficient to sustain Reed's conviction on one charge of criminal possession of a financial device—four or more devices and two different names, where a gift card in one person's name had no available funds and the prosecution presented no other evidence of the card's usability. However, the evidence was sufficient to sustain his conviction on the lesser included offense of criminal possession of a financial device—four or more devices. Accordingly, we reverse and remand for resentencing on that charge.
¶ 3 On Sunday, February 11, 2007, Reed and the now-deceased victim met for Bible study and dinner at Reed's father's and stepmother's house in Aurora, along with several other friends. The victim was Reed's girlfriend and a friend of Reed's stepmother, E.R. At approximately 9:00 or 9:30 p.m., Reed and the victim left Reed's parents' house, heading to the victim's apartment. E.R. last spoke to the victim on the phone around 10:00 p.m.
The next day, E.R. repeatedly tried to contact the victim by phone and by visiting her apartment. E.R. noticed that the victim's car was missing. Eventually, E.R. contacted the police, who conducted two welfare checks on the victim, at around 2:00 p.m. and again at 5:00 or 6:00 p.m. The police did not observe anything suspicious during the welfare checks, but did not enter the locked apartment.
¶ 5 The victim's daughter later entered the victim's apartment with a key. At approximately 7:00 p.m., one of the victim's friends kicked in the victim's locked bedroom door. The victim's friends and her daughter found the victim lying face down in her bed, dead, with the covers pulled to her head.
¶ 6 The Arapahoe County coroner later determined that the victim died from asphyxiation due to strangulation and possibly suffocation or smothering.
¶ 7 Before the victim was found, Reed was arrested in Park County while driving the victim's car, which did not have working brake lights. Park County sheriff deputies tried to pull him over, but he led them on a chase until they had to deploy “stop sticks.” They deflated the car's tires, forcing it to stop. Reed crashed into a ravine and was unconscious when the deputies reached him. Later at the hospital, Reed told the nurse that he had ingested seven grams of cocaine.
¶ 8 In the victim's car, deputies found her jewelry, her purse, several of her credit cards and checks, and a gift card bearing another man's name. Deputies also found syringes in the car and on Reed.
¶ 9 The district attorney charged Reed with first degree murder—after deliberation, first degree murder—felony murder, aggravated motor vehicle theft, criminal possession of a financial device—four or more devices and two different names, and robbery. The prosecution's theory of the case was that Reed was addicted to cocaine, and he killed the victim and stole her property to buy drugs or to pay a debt.
¶ 10 A jury acquitted Reed of first degree murder, but convicted him of the lesser included offense of second degree murder. The jury acquitted Reed of robbery, but convicted him of theft, and also convicted him of aggravated motor vehicle theft and criminal possession of a financial device—four or more devices and two different names.
¶ 11 Reed first contends that the trial court abused its discretion in denying his motion for a new trial due to prosecutorial misconduct. According to Reed, the district attorney committed prosecutorial misconduct when he failed to prevent three witnesses from mentioning Reed's prior conviction or parole status after the trial court determined pretrial that such evidence was inadmissible. We disagree and affirm.
¶ 12 Whether a prosecutor has engaged in misconduct is an issue within the trial court's discretion. People v. Strock, 252 P.3d 1148, 1152 (Colo.App.2010). We will not disturb the trial court's ruling on the issue absent a showing of an abuse of discretion resulting in prejudice and a denial of justice. People v. Moody, 676 P.2d 691, 697 (Colo.1984); Strock, 252 P.3d at 1152.
¶ 13 “In determining whether prosecutorial misconduct mandates a new trial, an appellate court must evaluate the severity and frequency of misconduct, any curative measures taken by the trial court to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to the defendant's conviction.” People v. Hogan, 114 P.3d 42, 55 (Colo.App.2004).
¶ 14 Before trial, the court ruled that evidence of Reed's prior convictions and parole status was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice. SeeCRE 403. The trial court instructed the attorneys to so advise their witnesses.
¶ 15 At trial, Reed's counsel objected to statements from three witnesses that allegedly violated the court's order. Each time, Reed's counsel moved for a mistrial, the trial court denied the motion, ruling that any prejudice to Reed from the witness's statement did not warrant a mistrial.
¶ 16 After the jury returned its verdict, Reed's counsel moved for a new trial, arguing that the district attorney committed prosecutorial misconduct in failing to prevent the witnesses from testifying about Reed's prior convictions or parole status. The trial court denied the motion in a thorough, well-reasoned order, finding no misconduct or prejudice. We analyze each witness's statement separately and conclude that the trial court did not abuse its discretion in denying Reed's motion for a new trial.
¶ 17 The prosecutor asked V.C. how she knew Reed:
Reed's counsel objected and moved for a mistrial.
¶ 18 At a bench conference, the prosecutor assured the trial court that V.C. had been told, along with other witnesses, that she should not mention Reed's previous incarceration. The prosecutor further informed the court that though V.C. did not speak English well, the prosecutor was not able to get an interpreter who spoke V.C.'s native language, Tagalog, a Filipino language. 1
¶ 19 We conclude there was no evidence of prosecutorial misconduct. The prosecutor properly advised V.C. not to mention Reed's criminal history, and he did not elicit the inadmissible evidence from V.C. See People v. Shreck, 107 P.3d 1048, 1060 (Colo.App.2004). The prosecutor only asked V.C. if she knew Reed's last name; the prosecutor did not ask V.C. when or how she met Reed. V.C.'s answer was nonresponsive. Moreover, Reed's counsel declined the trial court's offer of a cautionary or curative instruction. See Hogan, 114 P.3d at 55.
¶ 20 The prosecutor asked L.H., the victim's friend, about the last time L.H. cautioned the victim about Reed. L.H. responded that it was at another witness's home when they were “finding a place to report” (according to the official trial transcript). The defense attorney and the court heard L.H. say they were “filing a police report.”
¶ 21 Reed's counsel objected after the conclusion of L.H.'s testimony, outside the presence of the jury, to avoid calling attention to L.H.'s supposedly inadmissible statement. He argued that while he was not trying to suggest that the prosecutor solicited the statement, the statement prejudiced Reed because the jury could infer that the police report related to Reed.
¶ 22 The record does not show what the jury heard—whether it heard what is reflected in the transcript or what Reed's counsel and the trial court heard. In any event, we conclude there was no evidence of prosecutorial misconduct. As Reed's counsel conceded at trial, the prosecutor did not elicit the statement from L.H. See Shreck, 107 P.3d at 1060. The prosecutor asked her when and where she last spoke to the victim about Reed, but did not ask what else was happening at the place where they spoke. Moreover, L.H.'s statement did not associate Reed with a police report in any way, and did not elaborate about what was being reported. The statement simply did not reference Reed's criminal history or other evidence excluded before trial. Accordingly, the trial court did not abuse its discretion in denying Reed's counsel's request for a mistrial.
¶ 23 The prosecutor asked Officer B. about his role in the investigation of the victim's death. Officer B. testified that Reed's stepmother had initiated a welfare check on the victim, and that he responded but found nothing amiss or suspicious. An hour later, he was dispatched to...
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