People v. Collins, s. 84SA240

Docket Nº85SA318
Citation730 P.2d 293
Case DateDecember 08, 1986
CourtSupreme Court of Colorado

Page 293

730 P.2d 293
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
Charles COLLINS, Defendant-Appellee.
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Charles COLLINS, Defendant-Appellant.
Nos. 84SA240, 85SA318.
Supreme Court of Colorado,
En Banc.
Dec. 8, 1986.
Rehearing Denied Jan. 20, 1987.

Page 295

Milton K. Blakey, Dist. Atty., F. Joseph Fennessy, Jr., Kenneth H. Jaynes, Deputy Dist. Attys., Rifle, for the People in No. 84SA240.

David F. Vela, Public Defender, Peggy O'Leary, Deputy Public Defender, Denver, for Collins.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for the People in No. 85SA318.

VOLLACK, Justice.

In this consolidated appeal, the defendant, Charles Collins, seeks reversal of his conviction by jury trial of first degree assault under section 18-3-202, 8B C.R.S. (1986), and of crime of violence under section 16-11-309, 8A C.R.S. (1986), and of his sentence in the aggravated range for the crime of violence conviction. The People also appeal. They claim the trial court improperly considered certain jury affidavits in the defendant's motion for new trial, notwithstanding the trial court's denial of the motion. We dismiss the People's appeal and affirm the judgment and sentence.


The facts which led to the filing of charges against the defendant are in dispute.

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According to the defendant, he was parked off the side of a road west of Rangely, Colorado, drinking beer with two friends, Bill Humes and Laurie Conn, on the afternoon of July 15, 1983. The defendant consumed five or six beers. While driving toward town, he saw a truck approaching. The truck was driven by James Darrell King. The defendant testified that King ran him off the road and then backed up into the side of his car. King exited his truck and began to speak in an aggressive manner. When King threatened Humes, the defendant testified that he reached into the car for a .22 rifle. King lunged at the defendant and grabbed the weapon. The two men began to struggle, and the defendant testified that King bit the defendant's thumb and grabbed the muzzle of the rifle. The defendant testified that he was afraid King was going to gain possession of the rifle and that he, therefore, pulled the trigger two or three times.

King testified that it was the defendant who was in the middle of the narrow road and who forced him off the side of the road. King alleged that the defendant shouted at him as he passed. King returned to the road, but noticed that the defendant had pulled over. King testified that he backed down the road, stopped his truck, and exited. At the same time, King alleged that the defendant left his car carrying a rifle and that he pointed it at King. King testified that the defendant told him to get down on his knees, that he said no, and that the defendant shot him in the chest. King alleges that after he was shot, he attempted to wrestle for the rifle, but soon became incapacitated because his lung had collapsed.

All witnesses agree that after the victim was shot, the defendant handcuffed him, grabbed him by the hair, and hit him several times. The defendant also hit King with the butt of the rifle. The defendant ordered Humes to roll the victim over and point his head downhill because "they bleed better that way." King testified that he kept trying to rise, but each time the defendant would strike him back down. King told the defendant he would die if he did not get to a hospital, and the defendant responded, "Damn right you're going to die, you deserve to die." The evidence is conflicting as to whether the defendant then shot King twice more, once in the eye and once on top of the head, or whether the two wounds were caused by a blunt object.

Humes and Conn started to run to the defendant's nearby home to notify the defendant's mother and the police. On the way Conn flagged down her boyfriend, Tony Wiser, and another friend, Darren Todd, who were driving in a truck and returned to the scene of the shooting.

When they arrived, the defendant was standing near his car, holding the rifle. Todd offered the defendant a beer. They discussed taking the victim to the hospital, but the defendant told Wiser not to do anything, just to leave the victim there and let him die, because the world did not need his kind. Wiser ignored the defendant and drove King to the local hospital. King survived his injuries.

At the hospital where King was taken, blood samples were drawn for purposes of treatment. The police obtained one of the vials and transported it to the local C.B.I. office for a blood-alcohol test, but that office did not have the equipment to perform the test. The vial was then taken to the Meeker County Sheriff's office and stored in a refrigerator. On July 20, 1983, the defendant filed a motion for preservation of evidence, requesting an order directing the prosecution to preserve the blood sample. The motion was granted on July 22, 1983. In October of 1983, however, when a sheriff's officer opened the refrigerator door, the blood sample fell and broke on the floor. The sample that was preserved was too small to be tested.

On October 13, 1983, the defendant moved to dismiss the charges against him based on the prosecution's destruction of material evidence that might have been favorable to his defense. The district court acknowledged a due process violation, but refused to grant a dismissal of the charges, ruling that dismissal was too harsh a remedy.

Page 297

Instead, the court fashioned the following remedy:

[t]he appropriate remedy is to allow the defendant to present evidence of the taking of the sample of the victim's blood, evidence of its mishandling and essential destruction by the people, and the evidence in the form of the testimony of Dr. Lantz [serology and firearms expert] as to what could or could not have been determined from that evidence had he had the opportunity to analyze it.

Further, the court concludes that it is appropriate for the court to reverse its prior ruling on the defendant's motion in limine concerning the U.S. District Court prosecution of the victim in a prior incident to assist the defendant presenting his issue of self-defense to the jury.

During jury voir dire, the court limited defense counsel's inquiry into each juror's view of self-defense to one example of a self-defense concept, such as retreat to the wall, in order to probe the juror's reaction to determine whether any of them would reject a concept of law which was unfamiliar to them. If any juror gave an unexpected answer, the court would "rethink" its limitation on voir dire. The court stated that its reason for the limitation was to prevent counsel from lecturing to the jury on the law and trying the case on voir dire.

At trial, testimony was presented that the victim had been drinking on the afternoon of the incident, that he was noticeably intoxicated and that he was abusive. In addition, numerous witnesses, including the victim's aunt, testified as to the victim's tendency toward aggressive and violent behavior and that the victim was often intoxicated.

The prosecution called Humes to testify on the People's behalf. In return for his testimony, the prosecution agreed to a plea bargain on the original felony charges of accessory to first degree assault and crime of violence. Humes was to receive a deferred sentence and two years of probation. The prosecution introduced evidence of the plea bargain through direct examination of Humes. On cross-examination, the following question was asked of witness Humes:

Q Mr. Humes, just to clear up one matter raised on direct examination.

As a result of the plea bargain that you entered into, the maximum amount of prison liability that you had--

At that point, the prosecution's objection on grounds of irrelevance was sustained.

When the jury returned the verdicts, there was a request to poll the jury. The court polled the jury, and, so far as the record shows, there was unanimous concurrence in the verdicts at that time.

Subsequent to the jury's verdict and the entry of the court's judgment, the defendant made a motion for new trial, alleging that the jury's verdict was the result of misconduct and was invalid. At the motions hearing on April 12, 1984, the court considered the affidavits of jurors. The court refused to allow the defendant to present testimony from jurors that the jury failed to find beyond a reasonable doubt that serious bodily injury was inflicted on the victim. However, on its own motion, the court raised the matter of coercion exerted against one juror. After receiving testimony from that juror, the court denied the motion for new trial.

The court then received testimony and argument concerning the sentencing of the defendant and, pursuant to section 18-1-105(1)(a), 8B C.R.S. (1986), sentenced him to the Department of Corrections for eight years and one day.

The defendant raises numerous issues on appeal. We address each issue separately and affirm the judgment and sentence.


The defendant contends that the prosecution's negligent destruction of the victim's blood sample was a due process violation which could only be remedied by dismissal of the case. The defendant argues that an analysis of the blood would have allowed him to determine the amount of alcohol it contained and assisted in his self-defense argument. The district court ruled that

Page 298

the negligent destruction of the blood sample was a due process violation. However, it fashioned a less drastic remedy than dismissal of the case by allowing the defendant to present evidence of the taking of the sample of the victim's blood, evidence of its mishandling and essential destruction by the People, and evidence in the form of testimony of Dr. Lantz as to what could or could not have been determined from the evidence had he had the opportunity to...

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