People v. Cook

• Decision Date: 31 August 2000
• Docket Number: No. 98CA1078.,98CA1078.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John H. COOK, Defendant-Appellant.
• Court: Colorado Court of Appeals

22 P.3d 947

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John H. COOK, Defendant-Appellant.

No. 98CA1078.

Colorado Court of Appeals, Div. II.

August 31, 2000.

Rehearing Denied October 12, 2000.

Certiorari Denied April 23, 2001.¹

Ken Salazar, Attorney General, Nancy Bauer Egelhoff, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Nancy L. Flax, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, John Henry Cook, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony murder, robbery, and being a habitual criminal. We affirm defendant's felony murder conviction, vacate the robbery and habitual criminal convictions, and remand for correction of the mittimus.

In January 1998, while defendant and the co-defendant were visiting defendant's son in Woodland Park, Colorado, defendant called a massage therapist (victim) to his son's trailer home and agreed to exchange his handyman skills for a massage. The victim was later found strangled in her car.

The day after the victim's death, defendant helped his son purchase a truck, borrowed some money from an acquaintance of his son, and with his co-defendant left for Las Vegas, Nevada. The next day the police arrested defendant and the co-defendant outside a hotel in Mesquite, Nevada.

Prior to defendant's trial, the co-defendant pled guilty to robbery, conspiracy to commit robbery, and second degree murder. Defendant's trial resulted in the convictions at issue here.

I. Newspaper Article

Defendant contends the trial court erred in failing to follow the appropriate procedure to determine whether a defendant has been prejudiced by juror exposure to extraneous information during trial. Defendant argues that a newspaper article published in a local paper during the trial was prejudicial because it may have revealed information to the jurors about defendant that the trial court had ruled inadmissible. Therefore, defendant urges, the trial court erred in refusing to question jurors as to whether they had seen the article. We perceive no reversible error.

In making a determination as to whether a defendant has been prejudiced by juror exposure to extraneous information from the media, the trial court must: (1) determine whether the media coverage has a potential for unfair prejudice; (2) canvass the jury to ascertain whether jurors have been exposed to the potentially prejudicial publicity; and (3) examine exposed jurors individually to ascertain how much they know of the publicity and what effect, if any, it has had on the juror's ability to decide the case fairly. Harper v. People, 817 P.2d 77 (Colo.1991).

On appeal, a party may defend a trial court's judgment on any ground supported by the record, regardless of whether that ground was relied upon or even contemplated by the trial court. People v. Eppens, 979 P.2d 14 (Colo.1999).

Here, the article contained statements by the prosecutor regarding incidents in which defendant, while in New York City, attempted to "troll for victims" by calling women service providers and asking them to make house calls. Defendant brought the article to the court's attention, and requested that the court ask jurors whether they had seen it. The court denied the request, concluding that there was no evidence that the jurors had ignored its instructions to avoid local newspaper and television accounts of the trial.

The court nevertheless offered to instruct the jurors at subsequent trial recesses that they must be extra vigilant and not read articles about the case in the local papers. Defendant's attorney told the trial court that such an instruction would be "fine."

Because defendant informed the court that the supplemental cautionary instruction to the jury would be sufficient, he cannot now complain about any error that may have resulted from the trial court's failure to determine whether the article was prejudicial or to poll the jurors as to whether they had seen it. See People v. Collins, 730 P.2d 293, 304-05 (Colo.1986)

(defendant may not complain where he has been "instrument for injecting error into the case").

II. Recusal

Defendant next contends the trial judge erred in not recusing himself after making prejudicial comments about defendant during the co-defendant's sentencing. We disagree.

A defendant may seek recusal of a trial judge if the motion and required affidavits contain facts from which a reasonable person may infer that the judge has a bias or prejudice toward the defendant that will in all probability prevent him or her from dealing fairly with the defendant. People v. District Court, 898 P.2d 1058 (Colo.1995).

A motion for recusal must include affidavits of at least two credible persons not related to the defendant. Crim. P. 21(b)(1). The affidavits must state facts requiring recusal; mere conclusions are insufficient. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952).

The trial court must accept as true the facts stated in the motion and affidavits. People v. Botham, 629 P.2d 589 (Colo.1981).

A trial court's conclusion regarding the legal sufficiency of the motion and affidavits is subject to independent review on appeal. Smith v. District Court, 629 P.2d 1055 (Colo.1981).

In support of his recusal motion, defendant attached two affidavits from attorneys in Colorado Springs. Defendant contends that these affidavits alone were sufficient to require recusal. He also argues that even if this court disregards the conclusions in the affidavits, the facts cited by the affiants were sufficient to require recusal. We disagree with both contentions.

The affiants cited as facts the following statements made by the trial court during the co-defendant's sentencing, which occurred two weeks before defendant's trial.

I agree with [the prosecutor] this was in the nature of some sort of a premeditated robbery murder scheme put together here involving a completely innocent victim who was lured to the scene with no chance of ever surviving the circumstances that had been planned for her in her fate.

I'm not gonna make some factual finding here that Mr. Cook himself is solely responsible for what happened here, and that if he hadn't been around with you [the co-defendant], that you wouldn't of [sic] done any of this, or that you did everything simply because he told you to do it. There's certainly evidence that indicate [sic] that he may have had some inducement role in all of this, but you certainly, for the crimes that you've pled guilty to that you've said that you have committed, have established your own role in the murder of [the victim] and her robbery . . . .

Based on the comments, the affiants concluded that the court was biased and should have recused itself.

Although the trial court was required to consider as true the facts set forth in the affidavits, it was not bound by the attorneys' conclusions that recusal was required. See Walker v. People, supra. Therefore, we must determine whether the factual allegations were sufficient to require recusal.

The above-cited statements were made while the trial court was explaining the mitigating factors that it could consider in sentencing the co-defendant. Defendant argues that the comments show that, before his trial began, the trial court had already concluded he was guilty of the crimes charged.

Based on our review of the transcript of the co-defendant's sentencing hearing, we conclude that the comments made by the trial court did not amount to a prejudgment by the trial court as to defendant's guilt.

In addition, we conclude that the cases defendant relies on to support his argument are distinguishable.

One case cited by defendant, In re George G., 64 Md.App. 70, 494 A.2d 247 (1985), involved six defendants on trial for rape. Prior to the defendant's trial, the trial judge had presided over the trials of three other co-defendants. Based on these prior adjudications, the defendant requested that the judge recuse himself. During the hearing on the defendant's recusal motion, the judge stated to the defendant's attorney: "You might be able to prove that he is innocent." The judge then refused to recuse himself. In reversing the defendant's conviction, the Maryland Court of Appeals concluded that the judge's statement gave the appearance of bias, and therefore required recusal.

Similarly, in People v. Gibson, 90 Mich. App. 792, 282 N.W.2d 483 (1979), also cited by defendant, the court held that recusal is required where the judge "expresses a preconceived notion as to defendant's guilt or innocence" and concluded that recusal sua sponte was required by the trial judge's remark during the first trial of two co-defendants. At that trial, the trial judge stated: "There is no question in the Court's mind that this was done by [the co-defendant] and [defendant], his companion, this assault with intent to steal from [the victim] his monies or other things of value that they found in the vicinity." People v. Gibson, supra, 282 N.W.2d at 485.

We agree with defendant that a trial court judge presiding over the separate trials of two co-defendants may not make a statement expressing bias or prejudice about the second co-defendant during the earlier trial or sentencing of the first co-defendant. However, where, as here, the trial court's statements merely consist of comments about a second co-defendant as part of the consideration of mitigating factors during the sentencing of the first co-defendant, recusal is not required. Cf. Comiskey v. District Court, 926 P.2d 539 (Colo.1996)

(information judge learns in performance of his or her judicial duties is generally not sufficient grounds for disqualification).

We perceive no bias or prejudice towards defendant in the judge's remarks. Indeed, the court here expressly declined to find that: (1) defendant was solely responsible for the murder and robbery that had occurred, or (2) the co-defendant committed the crimes to...