People v. Corbett, 28315

• Decision Date: 12 May 1980
• Docket Number: No. 28315,28315
• Citation: 199 Colo. 490,611 P.2d 965
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael CORBETT, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 965

611 P.2d 965

199 Colo. 490

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael CORBETT, Defendant-Appellant.

No. 28315.

Supreme Court of Colorado, En Banc.

May 12, 1980.

Rehearing Denied June 2, 1980.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Sarah Scott Sammons, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

LOHR, Justice.

Defendant, Michael Corbett, has appealed to this court from a judgment of conviction for first-degree murder for the stabbing death of Winford Proffitt. We affirm.

Proffit and a companion were driving on the streets of Colorado Springs late in the evening on June 27, 1975, seeking to obtain a small quantity of marijuana. They inquired of two strangers in a nearby car whether they knew where marijuana could be obtained. One of the strangers was the defendant; the other was Freddie Glenn. At the strangers' suggestion, Proffitt and his companion followed them to a park near Prospect Lake. Proffitt went into the park with the defendant to make the purchase. Soon thereafter defendant returned alone and approached Proffitt's companion, who became alarmed and fled. About the same time that the defendant returned from the park, Proffitt staggered to the porch of a house near the park, where he fell mortally wounded as a result of a knife wound six to ten inches in depth. There was no witness to the slaying. Defendant was charged with first degree murder. The People's case included three statements made by defendant to three different witnesses, in which defendant acknowledged commission of the crime. ¹ Trial to a jury resulted in conviction, and this appeal followed.

Defendant urges reversal on two grounds: (1) admission of irrelevant and prejudicial testimony and (2) prejudicial conduct of the trial judge toward defense counsel. We find neither ground to be supported in the record.

I.

The defendant first contends that the testimony of prosecution witness Larry Dunn was irrelevant. Dunn testified, over defense objection, about a conversation in which he participated approximately ten days prior to the death of Proffitt. Participants in the conversation were Dunn, the defendant, Freddie Glenn, and one other man. Dunn stated that the subject of the discussion was robberies and that, during the course of the conversation, "(i) t was said that if anyone witnessed or identified us and we was robbing someone they would have to be killed." Contrary to defendant's contention, this testimony was relevant. It helped establish the defendant's motive in killing Proffitt and, as motive is a circumstance which tends to show criminal intent, Smaldone v. People, 103 Colo. 498, 88 P.2d 103 (1939), the testimony was probative of one of the material elements of the crime charged. See People v. Calvaresi, Colo., 600 P.2d 57 (1979). The lapse of time between the conversation and the crime affects the weight to be given that evidence but not its admissibility. People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974).

Defendant urges that, even if this evidence is relevant, the prejudice created by the testimony outweighed any probative value and the admission of the evidence was prejudicial error. This court has held that relevant and material evidence of motive will not be excluded merely because it may be prejudicial. People v. Miller, supra; Candelaria v. People, 177 Colo. 136, 493 P.2d 355 (1972). It is within the trial court's discretion to determine whether the prejudicial effect of proffered evidence outweighs its probative value; absent an abuse of that discretion, the trial court's decision to admit the evidence will not be disturbed on review. People v. Henry, 195 Colo. 309, 578 P.2d 1041 (1978). We find no abuse of discretion in the trial court's decision to admit evidence of the conversation relating to robberies.

Defendant next contends that testimony by two prosecution witnesses concerning defendant's skill in the martial arts was irrelevant, and that it was highly prejudicial because it tended to show a predilection for violence. The testimony consisted of an explanation of defendant's expertise in two basic categories of the martial arts. One category involved the use of various body movements and the other concerned the use of swords and knives. The testimony about defendant's ability in the martial arts involving body movements may have been irrelevant as the victim died not from a surface blow to the body, but from a stab wound. However, it was an integral part of the testimony of one witness concerning the types of martial arts in which defendant had engaged, the instruction he had received, and the competitions in which he had participated. The testimony of defendant's skill with knives was relevant to show his familiarity with knives and ability to manipulate them, even though the evidence did not indicate that the victim had been stabbed in any unusual manner which was indicative of martial arts training. The issue once more is whether the prejudicial effect of the evidence outweighed its probative value.

The manner of presentation of the martial arts evidence was not inflammatory. There was no indication that the defendant had ever used his skills to harm anyone. The witnesses stated only that the defendant had used his skills in practice or competition, or for entertainment purposes. One of the witnesses characterized martial arts skills as a form of self-defense. Further, prior to the testimony of the second witness, the court instructed the jury that the evidence was offered only for the limited purpose of showing the physical accomplishments of the defendant in the martial arts sports and it was not to be considered as a reflection on defendant's character. We presume that the jury understood and followed this instruction. See People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978). Under these circumstances we cannot say that admission of the martial arts evidence constituted an abuse of discretion by the trial court. See People v. Henry, supra.

II.

Defendant argues that he was denied a fair trial because the court, by gestures, remarks, and conduct, ² indicated a bias and prejudice against him and his counsel. To determine if such prejudice did result, we will examine each specific instance noted by the defendant.

The first instance of alleged prejudicial conduct arose during the course of voir dire examination of prospective jurors. Upon indication by one of the prospective jurors that he was familiar with the name of the defendant, defense counsel requested that the individual be examined in chambers. The trial judge responded, "Well, we will go in...