People v. Borrelli, No. 77-713

Docket NºNo. 77-713
Citation624 P.2d 900
Case DateOctober 23, 1980
CourtCourt of Appeals of Colorado

Page 900

624 P.2d 900
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Michael BORRELLI, Defendant-Appellant.
No. 77-713.
Colorado Court of Appeals, Div. II.
Oct. 23, 1980.
Rehearing Denied Nov. 20, 1980.
Certiorari Denied March 9, 1981.

Page 902

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sp. Asst. Atty. Gen., J. Stephen Phillips, First Asst. Atty. Gen., Denver, for plaintiff-appellee.

Holm & Dill, H. Alan Dill, Kim H. Peterson, Jon Stonebraker, Denver, David A. Sorenson, Denver, for defendant-appellant.

PIERCE, Judge.

Defendant appeals his conviction of first degree murder, conspiracy to commit first degree murder, and first degree assault. Defendant has raised numerous contentions of error on appeal, one of which we conclude requires reversal and remand to the trial court for a new trial.

I.

During the voir dire, one of the jurors stated that she was acquainted with a certain psychiatrist. The following exchange then took place between the trial court and the juror:

"THE COURT: How do you happen to know Dr. ______?

"JUROR: My mother had a nervous breakdown, and he was her psychiatrist, and he took care of her for ten years. And I did some work in his office a ways back. I did a billing, not his, but one of his partners', for awhile. We're just friends. He knows my sister real well. When she got on me last night, I just called him and asked him what I should do.

"THE COURT: Just as an advisor? He hasn't been your doctor?

"JUROR: No. He's just my friend, my mother's."

Approximately one year after the trial and conviction of defendant, this juror died of acute secobarbital intoxication, leaving a note indicating that she had committed suicide. It was subsequently determined that the juror had not been truthful in her responses during voir dire and that from 1970 until her death in 1978 she had in fact been treated for a serious personality disorder by this psychiatrist. Also, prior to the trial at issue, the juror had attempted suicide at least six times, and on two occasions was under the care of the Fort Logan Mental Health Center and the Northwest Community Mental Health Center. Additionally, during the eight-year period the juror was under the care of this psychiatrist, she was regularly issued prescriptions for psycho-active drugs.

On appeal, defendant contends that the trial court erred in denying his motion for new trial based on the newly discovered evidence that the juror gave false answers and concealed material facts on voir dire, and that the juror was incompetent because of her personality disorder and ingestion of mind-altering drugs during the period of her jury duty. The People contend that the juror incompletely assessed the nature of her relationship with the psychiatrist, that this incomplete assessment was immaterial to her qualifications as a juror, that the evidence does not show that the juror was incompetent during the period of her jury duty, and that defendant has failed to show that he suffered any prejudice as a result of

Page 903

the juror's incomplete disclosure during voir dire.

The failure of a juror during void dire to answer material questions truthfully, if discovered during a trial, may justify the removal of that juror and replacement with an alternate or may justify declaring a mistrial. People v. Bastardo, 191 Colo. 521, 554 P.2d 297 (1976); State v. Tresvant, 359 So.2d 524 (Fla.Dist.Ct.App.1978); Minnis v. Jackson, 330 So.2d 847 (Fla.Dist.Ct.App.1976); see also People v. Farris, 66 Cal.App.3d 376, 136 Cal.Rptr. 45 (1977). If the lack of candor on the part of the juror is not discovered until after the trial, it may justify the granting of a new trial. People v. Rael, 40 Colo.App. 374, 578 P.2d 1067 (1978); State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962); see also Baker v. Keller, 15 Ohio Misc. 215, 44 Ohio Op.2d 432, 237 N.E.2d 629 (1968). A defendant has the right to exercise all of his peremptory challenges, and when a juror misrepresents or conceals material and relevant matters, that right, as well as the right to challenge for...

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24 practice notes
  • Capano v. State, No. 110
    • United States
    • United States State Supreme Court of Delaware
    • August 10, 2001
    ...the statements were not offered "to prove or explain any subsequent acts of relevance" by the victim); People v. Borrelli, Colo. App., 624 P.2d 900, 903 (1980) ("[B]etter-reasoned cases allow hearsay expressions of a victim's fear of a defendant only where the state of mind of the victim is......
  • People v. Pena-Rodriguez, No. 11CA0034.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 8, 2012
    ...a material question during voir dire and fails to answer that question truthfully, the court may grant a new trial. People v. Borrelli, 624 P.2d 900, 903 (Colo.App.1980) ; see People v. Rael, 40 Colo.App. 374, 375–76, 578 P.2d 1067, 1068 (1978). However, to obtain a new trial based on juror......
  • People v. Acosta, Court of Appeals No. 10CA0790
    • United States
    • Colorado Court of Appeals of Colorado
    • July 3, 2014
    ...relevant and admissible under CRE 401 –403 if the victim's state of mind is at issue. Madson, 638 P.2d at 28–29 ; People v. Bor r elli, 624 P.2d 900, 903 (Colo.App.1980) (where the state of mind of the victim is clearly relevant to a material issue in the case, hearsay statements are admiss......
  • People v. Acosta, Court of Appeals No. 10CA0790
    • United States
    • Colorado Court of Appeals of Colorado
    • July 3, 2014
    ...are relevant and admissible under CRE 401–403 if the victim's state of mind is at issue. Madson, 638 P.2d at 28–29; People v. Bor r elli, 624 P.2d 900, 903 (Colo.App.1980) (where the state of mind of the victim is clearly relevant to a material issue in the case, hearsay statements are admi......
  • Request a trial to view additional results
24 cases
  • Capano v. State, No. 110
    • United States
    • United States State Supreme Court of Delaware
    • August 10, 2001
    ...the statements were not offered "to prove or explain any subsequent acts of relevance" by the victim); People v. Borrelli, Colo. App., 624 P.2d 900, 903 (1980) ("[B]etter-reasoned cases allow hearsay expressions of a victim's fear of a defendant only where the state of mind of the victim is......
  • People v. Pena-Rodriguez, No. 11CA0034.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 8, 2012
    ...a material question during voir dire and fails to answer that question truthfully, the court may grant a new trial. People v. Borrelli, 624 P.2d 900, 903 (Colo.App.1980) ; see People v. Rael, 40 Colo.App. 374, 375–76, 578 P.2d 1067, 1068 (1978). However, to obtain a new trial based on juror......
  • People v. Acosta, Court of Appeals No. 10CA0790
    • United States
    • Colorado Court of Appeals of Colorado
    • July 3, 2014
    ...relevant and admissible under CRE 401 –403 if the victim's state of mind is at issue. Madson, 638 P.2d at 28–29 ; People v. Bor r elli, 624 P.2d 900, 903 (Colo.App.1980) (where the state of mind of the victim is clearly relevant to a material issue in the case, hearsay statements are admiss......
  • People v. Acosta, Court of Appeals No. 10CA0790
    • United States
    • Colorado Court of Appeals of Colorado
    • July 3, 2014
    ...are relevant and admissible under CRE 401–403 if the victim's state of mind is at issue. Madson, 638 P.2d at 28–29; People v. Bor r elli, 624 P.2d 900, 903 (Colo.App.1980) (where the state of mind of the victim is clearly relevant to a material issue in the case, hearsay statements are admi......
  • Request a trial to view additional results

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