People v. Cevallos-Acosta
| Decision Date | 01 December 2005 |
| Docket Number | No. 03CA0207.,03CA0207. |
| Citation | 140 P.3d 116 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Camilo CEVALLOS-ACOSTA, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Camilo Cevallos-Acosta, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder, second degree assault, third degree assault, and two menacing charges. We reverse one of the menacing convictions and otherwise affirm.
According to the People's evidence, several witnesses observed defendant on the victim's back porch immediately before the murder, and one witness saw him with a knife. When the victim drove up behind the house, M.S., her fourteen-year-old son, saw defendant, with a knife, drag the victim out of the truck and say he was going to kill her. Defendant pointed the knife at M.S. and threatened to kill him if he came too close.
M.S. went inside the house to get his father. When M.S. came back outside, he saw the victim lying on the ground and defendant running away holding the knife. The victim's two other children, both age ten, saw defendant stab their mother. The victim died from the stab wounds.
Defendant asserted that another man, who had assaulted him and the victim months earlier, was the killer.
Initially, we reject defendant's assertion that every error which implicates his due process or other constitutional rights must be reviewed for constitutional harmless error. In People v. Miller, 113 P.3d 743, 749 (Colo. 2005), decided after defendant had filed his briefs, the supreme court held that "constitutional harmless error analysis is reserved for those cases in which the defendant preserved his claim for review by raising a contemporaneous objection." Thus, unpreserved error is reviewed only for plain error. People v. Miller, supra; see also People v. Petschow, 119 P.3d 495 (Colo.App.2004).
Defendant contends the trial court erred in denying two of his challenges for cause, after which he used peremptory challenges to excuse these two prospective jurors and later exhausted his remaining peremptory challenges. We perceive no error.
"A trial court must sustain a challenge for cause if the prospective juror shows enmity or bias towards the defendant or the state or acknowledges a previously formed or expressed opinion regarding the guilt or innocence of the defendant." People v. Simon, 100 P.3d 487, 492 (Colo.App.2004) (citing § 16-10-103(1)(j), C.R.S.2005). But expression of a possible source of bias does not require dismissal where the prospective juror agrees to set aside any preconceived notions and make a decision based on the evidence and the court's instructions. People v. Simon, supra.
The trial court has broad discretion in ruling on a challenge for cause because it is in the best position to view the prospective juror's demeanor. People v. Dashner, 77 P.3d 787 (Colo.App.2003). "The deference accorded the trial court's rulings extends to its evaluation of inconsistent or self-contradictory statement[s] of prospective jurors." People v. Dashner, supra, 77 P.3d at 789. The trial court's decision will be reviewed for abuse of discretion. Carrillo v. People, 974 P.2d 478 (Colo.1999).
Defendant argues that prospective juror W should have been removed for cause because he was an employee of a public law enforcement agency and he expressed actual bias. We disagree.
Defendant first asserts that Mr. W was presumptively biased because, having been a volunteer reserve officer for twenty years, he was an employee of a public law enforcement agency within the meaning of Crim. P. 24(b)(1)(XII) and § 16-10-103(1)(k), C.R.S.2005. According to defendant, he should have been automatically excused. We conclude this issue was not preserved for appeal.
Crim. P. 24(b)(1)(XII) and § 16-10-103(1)(k) provide that the trial court shall sustain a challenge for cause if a prospective juror is an employee of a public law enforcement agency. The court need not, however, excuse such a prospective juror sua sponte. See People v. Coney, 98 P.3d 930 (Colo.App. 2004) (); see also People v. Hinojos-Mendoza, 140 P.3d 30 (Colo.App. No. 03CA0645, July 28, 2005). Thus, People v. Russo, 713 P.2d 356, 361 (Colo.1986).
After Mr. W was questioned in chambers regarding his experience as a reserve officer and the effect that this experience might have on his ability to be fair, defense counsel moved "to challenge the juror for cause, because he would place authority on the testimony of a police officer over anybody else." Defendant did not challenge him based on either Crim. P. 24(b)(1)(XII) or § 16-10-103(1)(k).
Accordingly, we decline to address this issue for the first time on appeal. See People v. Coney, supra.
Defendant next asserts that Mr. W should have been excused for actual bias because he said that he would place authority on the testimony of a police officer over anybody else and he expressed hostility toward Mexican nationals, such as defendant. We disagree.
Mr. W admitted that he would weigh police testimony heavily, but also stated that he "could probably be fair." In response to the prosecutor's questions, he said that he wanted to "listen to the facts and make [his] own judgment and decision on it." Furthermore, he expressed belief in the legal system and said he would not find defendant guilty unless the prosecution proved him guilty beyond a reasonable doubt.
Mr. W also expressed frustration that illegal aliens can get benefits without paying taxes and even can sue United States citizens, which had happened to him. However, he also said he had no doubt whatsoever that he could be fair to a Mexican national, and added, "As far as guilty or innocent, no, [defendant's nationality] makes no difference what — so far as."
Accordingly, we discern no abuse of discretion in the trial court's decision to deny the challenge for cause.
Defendant argues that prospective juror G should have been removed for cause because a friend had been murdered five years earlier. We disagree.
Ms. G expressed doubt whether she could be fair and impartial in this case. However, she also stated several times that she would try to be fair and that she would follow the law as instructed. The trial court asked her to think about whether she could be fair and took defendant's challenge for cause under advisement.
Although Ms. G participated in the rest of voir dire, defendant did not renew his challenge for cause. At the end of voir dire, defendant made challenges for cause to Mr. W and another prospective juror, but did not mention his challenge for cause to Ms. G. Instead, defendant used a peremptory challenge to excuse her.
We conclude defendant abandoned his challenge for cause to Ms. G by failing to request that the trial court grant or deny it before exercising a peremptory challenge to excuse her. See Feldstein v. People, 159 Colo. 107, 410 P.2d 188 (1966)(the moving party must see to it that the court rules on the matter at issue), abrogated on other grounds by Deeds v. People, 747 P.2d 1266 (Colo.1987).
Accordingly, we discern no error in denial of the challenges for cause.
Defendant next contends prosecutorial misconduct during voir dire and closing argument violated his right to a fair trial and requires reversal. We disagree.
Although a prosecutor may argue all reasonable inferences from the evidence in the record, the prosecutor may not misstate or misinterpret the law. People v. Wallace, 97 P.3d 262 (Colo.App.2004).
The scope of closing argument rests in the sound discretion of the trial court, whose rulings will not be disturbed on review absent a gross abuse of discretion resulting in prejudice and a denial of justice. People v. Coria, 937 P.2d 386 (Colo.1997).
Where a defendant does not object to the prosecutor's statements, we review only for plain error. People v. Dashner, supra. To constitute plain error, prosecutorial misconduct must be "flagrant or glaringly or tremendously improper" and so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Salyer, 80 P.3d 831, 839 (Colo.App.2003).
People v. Wallace, supra, 97 P.3d at 269 (quoting People v. Rodriguez, 794 P.2d 965, 972 (Colo.1990)).
Prosecutorial misconduct in closing argument rarely constitutes plain error. People v. Weinreich, 98 P.3d 920 (Colo.App. 2004), aff'd, 119 P.3d 1073 (Colo.2005). In determining whether prosecutorial misconduct mandates a new trial, an appellate court must evaluate the severity and frequency of the misconduct and the likelihood that the misconduct constituted a material factor leading to the defendant's conviction. People v. Merchant, 983 P.2d 108 (Colo.App.1999).
Defendant first argues that the prosecutor's comments during voir dire and summation improperly defined "after deliberation" as "one...
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