People v. Estep

• Decision Date: 10 October 1978
• Docket Number: No. C-1225,C-1225
• Citation: 196 Colo. 340,583 P.2d 927
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Park Journee ESTEP, Respondent.
• Court: Colorado Supreme Court

Page 927

583 P.2d 927

196 Colo. 340

The PEOPLE of the State of Colorado, Petitioner, v. Park Journee ESTEP, Respondent No. C-1225.

Supreme Court of Colorado, En Banc.

Oct. 10, 1978.

Rehearing Denied Nov. 6, 1978.

J. D. MacFarlane, Atty. Gen., David A. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Atty. Gen., Denver, for petitioner.

Thompson, Nordby & Peterson, St. Paul, Minn., Richard L. Tegtmeier, Colorado Springs, Jack S. Nordby, St. Paul, Minn., for respondent.

LEE, Justice.

Respondent, Park Journee Estep, was convicted by a jury of first-degree murder, first-degree assault, first-degree arson, and aggravated robbery. The events giving rise to these charges occurred at the Suezy Massage Parlor in Colorado Springs on September 19, 1974. One woman was murdered by being shot, stabbed, and set on fire, and another woman, Miss Young Ja Lee, was stabbed in the back and had her neck slashed. The court of appeals reversed the convictions. People v. Estep, Colo.App., 566 P.2d 706. We do not agree that the alleged errors relied on by the court of appeals for reversal were so prejudicial as to require a new trial. Nor do we find the combined effect of the alleged errors denied the defendant a fair trial. See People v. Reynolds, Colo., 575 P.2d 1286; Oaks v. People, 150 Colo. 64, 371 P.2d 443. We therefore reverse the judgment of the court of appeals.

The court of appeals held that reversible error occurred when the district attorney propounded a highly improper question of a defense witness on cross-examination. The court of appeals further held that the trial court committed reversible error in refusing to admit testimony offered by the defense concerning the cultural significance of facial hair to Koreans. The key witness against the defendant was a Korean national and the testimony was in dispute as to whether the defendant wore a mustache at the time of the crimes. It is also contended here, although not addressed by the court of appeals in its opinion, that prejudicial error occurred during trial when the district attorney impermissibly suggested to the sole eyewitness to the transaction that the defendant was the perpetrator of the crimes.

In evaluating the quality of a trial for essential fairness, we recognize that, although an accused is entitled to a fair trial, he is not necessarily entitled to a perfect trial. If the latter were the standard for review, a conviction seldom would be upheld on appeal. This is not to say, however, that courts and prosecutors should not continually strive toward the achievement of the goal of perfect justice.

I.

At the outset, in reviewing the sufficiency of the evidence, we apply the standard for review set forth in People v. Bennett, 183 Colo. 125, 515 P.2d 466: "whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." The occurrence of the crimes was not in dispute. The critical issue was whether the defendant was the perpetrator. We hold that the prosecution met its burden of proving a prima facie case against the defendant.

The defendant elected not to testify in his own behalf. The jury was properly instructed on the law governing the case and, as the judge of the credibility of the witnesses and of the weight to be accorded to the evidence, it chose to believe the prosecution's witnesses.

There was substantial evidence directly connecting the defendant with the scene of the crime. First, and most importantly, the sole survivor of the criminal transaction, Miss Young Ja Lee, identified the defendant from a photographic array, again at a physical lineup, and eventually in court during the trial. Second, two young soldiers identified a truck substantially similar to defendant's truck which they had observed at the crime scene at approximately the time that the crimes were occurring. Miss Lee also described having seen a truck similar to the defendant's truck just prior to the commission of the crimes.

The district attorney also introduced circumstantial evidence tending to show that the defendant could have committed the crimes. It was demonstrated that the defendant owned a .38-caliber pistol and several knives which might have been used in the murder and assault. It was also undisputed that the defendant's wife had recently purchased the Speer brand of shot-shell similar to that which was used in the gun involved in the murder. There was testimony that the defendant, along with 36% of the male population, has blood group Type A, Rh-positive, and is a "secreter." A sperm sample obtained from the body of the decedent was shown to have come from such a "secreter."

Other evidence introduced by the prosecution indirectly tended to support the prosecution's case. There was evidence that the defendant had occasionally visited massage parlors. It was shown that the defendant did not like the Vietnamese people. The victims here were Korean. Finally, there was evidence that the defendant's family was having difficulty in meeting its current bills, thus supplying a possible motive for the crimes.

As noted before, the critical evidence concerned identification of the criminal actor. The defense introduced evidence casting some doubt upon Miss Lee's identification of the defendant and upon the identification of the defendant's truck. The prosecution was unable to further link the defendant to the crimes by either fingerprints, ballistics tests, license plates, incriminating statements, or any other real evidence. The testimony of the defendant's financial problems was answered by testimony indicating that the defendant and his family were actually in fairly good financial shape, from an equity standpoint.

II.

The defendant presented a series of witnesses who had seen the defendant on a daily basis during September and October 1974 and who recalled that he always had a moustache and a neat appearance. In beginning his cross-examination of one of these witnesses, the prosecutor asked the following question: "You never were with him when he was in the process of killing somebody, were you?" Defense counsel immediately asked for a mistrial, and in the alternative requested that the question be struck from the record. The trial court denied the motion for a mistrial, but instructed the jury to disregard the question. The district attorney then apologized to the witness for the improper question.

We agree with the court of appeals that this question was "manifestly improper." There was no valid purpose for asking such a highly prejudicial question.

As the court of appeals noted, the question is objectionable for manifesting the prosecutor's personal belief that the defendant is guilty. It has been appropriately pointed out that: "Such expressions by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of his office and undermine the objective detachment which should separate a lawyer from the cause for which he argues." ABA, Standards Relating to the Prosecution Function § 5.8(b) (Commentary). This practice has been strongly disapproved in Colorado. E. g., People v. Wright, 182 Colo. 87, 511 P.2d 460; People v. Lowe, Colo.App., 565 P.2d 1352.

We do not believe, however, in the circumstances of this case and in the absence of other prejudicial error, that the effect, if any, of the ill-framed question was of sufficient magnitude to require a new trial, presuming as we do that the jury followed the instruction of the court to disregard the improper question.

III.

A second alleged error at trial concerning the identification issue was the one upon which the court of appeals based its reversal. The defense tried to introduce testimony by the Reverend Yoon Goon Kim, and made the following offer of proof:

MR. THOMPSON: "The defendant would offer to prove, by the witness, Pastor Kim, that if Pastor Kim is allowed to testify, he will testify he is a native Korean, lived in Korea a considerable number of years; is familiar with the Korean culture; that, further, he will testify that facial hair in Korea is culturally significant to the extent that it is a mark of dignity; it is also a mark of age and is worn by people for respect; that it has significance that mustaches and beards are usually worn by the aged, by the cultured, and the professional; younger people do not have the temerity to wear facial hair, because it is a mark of respect and dignity.

"He would further state that this is a mores, or folkway of Korea; that it has significance to any Korean, who would probably pay particular attention or greater heed to facial hair than, say an American, because of this particular significance.

"The so-called victim in this case, who identified Park Estep as the assailant, is Korean, lived in Korea all her life, would be a part of this very culture, would have been exposed to this folkway, and facial hair would have a particular significance to her, as contrasted to some other witness and, therefore The evidence shows that on September 19th, 1974, Park Estep had a mustache. The witness Lee testified that her assailant did not have a mustache. And we feel that this is a very crucial indicia of identification, and we feel that, because Miss Lee is Korean, she would have paid particular attention to a mustache, as contrasted to someone else, and, therefore, we think it's extremely crucial, it's extremely material, and extremely relevant to one of the very issues of identification in this case; and if Pastor Kim were allowed to testify, that would be the essence of his testimony."

The trial court...