People v. Borrelli
Citation | 624 P.2d 900 |
Decision Date | 23 October 1980 |
Docket Number | No. 77-713,77-713 |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael BORRELLI, Defendant-Appellant. . II |
Court | Court of Appeals of Colorado |
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.
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.
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:
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 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 cause, is impaired. People v. Rael, supra; State v. Simmons, supra. Under the circumstances present here, the lack of candor on the part of the juror during voir dire denied defendant his right to make an intelligent decision as to whether to challenge the juror for cause, exercise a peremptory challenge, or accept the juror. As a result, the convictions must be set aside and a new trial granted.
Among defendant's contentions of error which may again occur on retrial is his assertion that the trial court erred by denying his motion to suppress evidence seized during a search of his residence. This contention is without merit.
Although the search in question occurred after defendant's arrest and after he had retained counsel, the search was properly conducted with the voluntary consent of defendant's wife. See People v. Wieckert, 191 Colo. 511, 554 P.2d 688 (1976). Under these circumstances, we find no violation, either ethical or constitutional, with respect to the failure of the police or the prosecutor's office to notify defendant's attorney that the search was being conducted.
Defendant also contends that the trial court erred in admitting hearsay statements to the effect that the victim was afraid of defendant. We agree.
The trial court admitted the statements purportedly made by the victim under the state-of-mind exception to the hearsay rule. Colorado Rules of Evidence 803(3).
Some courts have held that hearsay declarations by a homicide victim are admissible since they are presumptively probative of some matter in the case. State v. Shirley, 7 Or.App. 166, 488 P.2d 1401 (1971). However, the more recent and better-reasoned cases allow hearsay expressions of a victim's fear of a defendant only where the state of mind of the victim is clearly relevant to a material issue in the case. United States v. Brown, 490 F.2d 758 (D.C.Cir.1973); State v. Wauneka, 560 P.2d 1377 (Utah 1977). The concern is that the jury will not use the evidence to consider the victim's state of mind, but rather, as probative of the defendant's guilty state of mind. United States v. Brown, supra. These cases apply a balancing test and weigh the probative value of the evidence against the potential for prejudice to the defendant. This view is consistent with Colorado law. See People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S.Ct. 776, 54 L.Ed.2d 787 (1978).
Where, as here, the state of mind of the victim is not a material issue in the case, the prejudicial effect of extra-judicial declarations of fear of defendant by the victim outweighs any probative value of this evidence. As a result, the state of mind exception to the hearsay rule is not...
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