People v. Candelaria

• Decision Date: 17 June 2004
• Docket Number: No. 01CA2467.,01CA2467.
• Citation: 107 P.3d 1080
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Juan Jose CANDELARIA, Defendant-Appellant.
• Court: Colorado Court of Appeals

107 P.3d 1080

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Juan Jose CANDELARIA, Defendant-Appellant.

No. 01CA2467.

Colorado Court of Appeals, Div. III.

June 17, 2004.

Rehearing Denied September 2, 2004.

Certiorari Granted March 7, 2005.

Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant. Opinion by Judge GRAHAM.

Defendant, Juan Jose Candelaria, appeals the judgments of conviction entered upon jury verdicts finding him guilty of first degree murder after deliberation, first degree extreme indifference murder, conspiracy to commit first degree extreme indifference murder, four counts of attempted first degree murder, tampering with physical evidence, and crime of violence. We affirm in part, vacate in part, and remand.

The evidence at trial established the following facts. On the afternoon of the murder, defendant and V.M., a gang member, were driving V.M.'s van when P.M., a rival gang member, drove up alongside them. After the occupants of the two vehicles exchanged verbal gang threats and threw objects at one another's vehicles, P.M. fired several shots at the van, missing its occupants.

Defendant and V.M. then drove to T.V. and A.V.'s house where they met several other people. Defendant was upset by the episode and told the others that he was going to "kick [P.M.'s] ass" and "f* * * him up." He also said, "[W]e are going to kill that mother f* * * * *." Various others said they, too, wanted to go after P.M.

The group went to a friend's house where they discussed the earlier shooting. The group then left in two cars to look for P.M.'s car. Defendant drove his car. While driving around, V.M., who was in defendant's car, opened a gun case containing a TEC-9 semiautomatic machine pistol, inserted a clip, and said, "I got something for [P.M.]." V.M. also handed a .380 handgun to one of the passengers in the car.

Meanwhile, P.M. and his friends decided to go to a party. Four of the friends, including the victim, used P.M.'s car, while P.M. rode in a different car. As the friends were driving, defendant drove up behind them, and occupants in both vehicles exchanged gunfire. Someone in defendant's car fired twenty-four rounds at P.M.'s car. One of the rounds fatally struck the victim. Three .380 shell casings were found at the scene.

Defendant was sentenced to life imprisonment for first degree murder after deliberation. The court did not impose a sentence for first degree extreme indifference murder because there was a single victim. The court imposed consecutive sentences of forty-eight years on each of the attempt and conspiracy convictions and a concurrent sentence of one year on the tampering with physical evidence conviction.

I.

Defendant first contends that the trial court abused its discretion in admitting the testimony of a prosecution witness because it was irrelevant, prejudicial, and hearsay. Although we believe that the statement likely satisfied one or more exceptions to the hearsay rule, we nevertheless conclude that any perceived error was harmless.

A.

Defense counsel sought to prevent a prosecution witness, M.C., from testifying that, on the night of the murder, a group of young Hispanic males left T.V. and A.V.'s house, and he heard one of them say, "I'm going to kill that fool."

Defense counsel objected on the grounds of relevancy and prejudice, arguing that there was no connection between defendant and the statement because M.C. did not know who made the statement or whether defendant was even present when the statement was made.

The prosecution argued that the identity of the declarant goes to weight, not admissibility, and that the statement was admissible as a statement of a co-conspirator. The prosecution also asserted that the statement was admissible under several exceptions to the hearsay rule, including CRE 803(3), state of mind; CRE 803(1), spontaneous statement; and CRE 803(2), excited utterance.

The court ruled that the statement is "not inadmissible per se and that the defense can question its weight through cross-examination but not through exclusion from the jury."

At trial, M.C. testified that he was twelve at the time of the murder and lived across the street from T.V. and A.V. He testified that, between 10 and 11:30 p.m. on the night of the murder, he was watching television in his bedroom, which faced T.V. and A.V's house, when he saw six or seven Hispanic males between the ages of eighteen and twenty-one, none of whom he had seen before, leaving the house. M.C. testified that, before they drove away, one of them yelled that he was "going to get him or kill [him]."

B.

Although defendant did not object to the admission of the statement on hearsay grounds, the prosecution argued that the statement was admissible as a hearsay exception, and the trial court agreed with the prosecution. Thus, we deem the issue properly raised in the trial court, and we review for harmless error.

Under harmless error analysis, a trial court's erroneous evidentiary ruling that does not affect a substantial right of a party is to be disregarded. The trial court's evidentiary ruling will be deemed harmless only if a reviewing court can say with fair assurance that, in light of the entire record at trial, the error did not substantially influence the verdict or impair the fairness of the trial. People v. Bowers, 801 P.2d 511 (Colo.1990).

Hearsay statements are out-of-court declarations offered into evidence for the truth of the matter asserted. CRE 801(c). Hearsay statements are presumptively unreliable because the declarant is not present to explain the statement in context. Moreover, because the declarant is not subjected to cross-examination, the truthfulness of the statement is questionable. Blecha v. People, 962 P.2d 931 (Colo.1998).

Although the statement seems to qualify as a prototypical state of mind exception, there is cumulative evidence, even without M.C.'s testimony, that supports defendant's involvement in the conspiracy and attempt to kill P.M. Thus, even if M.C.'s testimony constituted inadmissible hearsay, we conclude that in light of M.C.'s cumulative testimony, it did not substantially influence the verdict or impair the fairness of the trial. See People v. Bowers, supra.

II.

Defendant next contends that the trial court erred in admitting into evidence prior statements of a prosecution witness. We disagree.

A.

The prosecution called A.V., who had been diagnosed with stage 2 cancer, as a witness at trial. She explained that her illness made it difficult for her to remember events that happened four years ago.

Nevertheless, A.V. testified that, on the day of the murder, E.G., E.M., V.M., and defendant were at her house. A.V. recalled that defendant was upset and angry. Although she testified that defendant talked to E.M., she could not remember specifically what defendant said. At this point, A.V. said that she felt lightheaded, but that she could finish her testimony.

The prosecution then asked her whether defendant came by her house the Tuesday after the murder and asked her to take a gun. Although she could not remember the exact day, she responded, "I think so." A.V. said that she did not remember why defendant wanted her to hold the gun, but "thought" that she had told police that defendant asked her to hold the gun because the police were searching "some of his stuff." She testified that she did not see the gun and that defendant was not holding anything at that time.

Defense counsel cross-examined A.V., but when she responded "I don't know" to several questions, defense counsel terminated the cross-examination. Before A.V. was excused, the court, at the request of the prosecution, ordered her to remain under subpoena.

The prosecution then called the detective who interviewed A.V. a few days after the murder. Defense counsel immediately objected, stating:

I think what he is going to try to do is impeach the witness, but a predicate to that impeachment is that he needs to call to her attention, when she is on the witness stand, ... the particular statements she is alleged to have made and to whom they were made, and that didn't occur, so I would object to what I think he is going to try to do here, because there is not an adequate foundation for it.

Defendant's sole basis for objection was that the prosecution failed to follow the procedural requirements for impeaching a witness with a prior inconsistent statement under CRE 613. The prosecution, however, explained that the prior statements were introduced for the truth of the matter asserted under § 16-10-201, C.R.S.2003, not for impeachment purposes under CRE 613, and the court overruled defense counsel's objection.

Thereafter, the detective testified that A.V. made the following statements to him:

He was mad because an individual by the name of [P.M.] had shot at him just earlier in the day. And I asked exactly how mad [V.M.] and [defendant] were. She had given me the impression they might have both been there, but she had indicated that they were yelling. And I quoted her saying, that mother f* * * * * is ours, when referring to P.M., that they were going to go back — she thought they were going to go back, and I quoted her as, seek revenge for what had happened just a little bit ago with [P.M.]

....

She described [V.M. and defendant] as being pissed. She said that, and I quoted her, we are going to kill that mother f* * * * *.... They were referring to [P.M.], that they were going to go and shoot them, get revenge for what had happened.

The detective also testified that A.V. said that, on the Tuesday after the murder, defendant came to her house around 3:30 p.m. and asked her whether she would be willing to hide a gun for him because the police were searching his...