People v. Evans, 96CA1602.

• Decision Date: 13 November 1998
• Docket Number: No. 96CA1602.,96CA1602.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marvin EVANS, Defendant-Appellant.
• Court: Colorado Court of Appeals

987 P.2d 845

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marvin EVANS, Defendant-Appellant.

No. 96CA1602.

Colorado Court of Appeals, Div. II.

November 13, 1998.

Rehearing Denied December 24, 1999.

Certiorari Denied November 15, 1999.¹

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Jerry N. Jones, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David F. Vela, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by Judge VOGT.

Defendant, Marvin Evans, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree murder. We affirm.

Defendant strangled the victim, his girlfriend, with a necktie while the two were fighting. At trial, defendant admitted strangling her, but claimed that he had done so in response to provocation by her.

The jury was instructed on first degree murder, with which defendant had been charged, and also on second degree murder, heat of passion manslaughter, reckless manslaughter, and criminally negligent homicide. The conviction here at issue resulted.

I.

Defendant first asserts that the trial court erred in excusing a venire member sua sponte, without allowing defense counsel to question him and without a challenge for cause by either side. We agree that counsel should have been permitted to question the prospective juror, but conclude that neither this error nor the dismissal without a challenge for cause requires reversal of defendant's conviction.

The trial court asked members of the venire if any of them had a moral, religious, or philosophical reason that they believed would prevent them from serving as a juror. One prospective juror, a man of Chinese ancestry, indicated that, based on his prior jury experience, he believed the judicial system did not treat minorities fairly. The court questioned the prospective juror in detail about his beliefs, and sought to have him make a commitment to decide the case based solely on the evidence and the law. The juror was unable to make that commitment.

The trial court then excused the prospective juror, and denied defense counsel's request for an opportunity to question him further. Later, after defense counsel reiterated for the record the bases for his objection to the excusal, the prosecutor stated that she had had concerns about the excused juror based on his questionnaire, in which he apparently indicated that he was unable to support the justice system with a clear conscience, and that she "thought it was actually a proper challenge for cause."

The right to voir dire prospective jurors is not a matter of constitutional law. People v. Rodriguez, 914 P.2d 230 (Colo.1996). Rather, that right is governed by Crim. P. 24. Crim. P. 24(a)(2) provides that, after the court has asked prospective jurors any questions which it believes are pertinent to their qualifications to serve as jurors, "the parties or their counsel shall be permitted to ask the prospective jurors additional questions."

Although Crim. P. 24 affords parties or counsel the right to voir dire, the trial court has discretion to limit the scope and extent of that right. People v. O'Neill, 803 P.2d 164 (Colo.1990). A restriction on voir dire is reversible error only if the court abuses its discretion with a prejudicial result. People v. Reaud, 821 P.2d 870 (Colo.App.1991). Prejudice will not be presumed. See People v. Johnson, 757 P.2d 1098 (Colo.App.1988)

.

Here, it was error for the trial court to refuse to permit defense counsel to question the prospective juror. However, defendant has not established actual prejudice from this refusal that would warrant reversal of his conviction.

A defendant has a right to a fair and impartial jury, but not to a jury composed of any particular individuals. People v. Tippett, 733 P.2d 1183 (Colo.1987). Defendant does not allege that the jury that was seated in his case was other than fair and impartial. Further, although he suggests that, as an African-American, he was prejudiced because the excused venire member was of Asian ancestry and no minorities were ultimately seated on his jury, he does not allege or establish any systematic discrimination against minorities; nor does this case involve the prosecution's use of peremptory challenges to remove minorities, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In these circumstances, we will not presume prejudice based solely on the fact that the excused juror was also a member of a minority group. See People v. Johnson, supra.

Moreover, defendant's stated basis for arguing that the trial court's preclusion of questioning requires reversal is that "further questioning by the parties may have revealed that [this prospective juror] was not actually subject to a challenge for cause." However, a defendant cannot establish prejudice based on an erroneous excusal for cause where, as here, the prosecution did not exhaust its peremptory challenges and thus could have removed the individual in question from the jury even if the court had not excused him. See Ready v. People, 32 Colo. 57, 74 P. 892 (1903); cf. People v. Macrander, 828 P.2d 234 (Colo.1992)

(erroneous denial of defendant's challenge for cause was not harmless where defendant had exhausted his peremptory challenges).

In People v. Lefebre, 981 P.2d 650 (Colo.App. No. 97CA0958, November 13, 1998), another division of this court concluded, as we do here, that it was error to excuse jurors for cause without permitting questioning by counsel. We note that although the error was found to require reversal in Lefebre, significantly different circumstances are presented here. In contrast to Lefebre, where the jurors were dismissed based solely on their questionnaire responses, the trial court in this case questioned the juror at length before excusing him; thus, the juror here was not excused only on the basis of a "previously formed or expressed opinion." See §XX-XX-XXX(1)(j), C.R.S.1998. Further, again in contrast to Lefebre, the prosecution here had sufficient unexhausted peremptory challenges to remove the juror even if he had not been excused for cause.

In addition to challenging the trial court's refusal to permit questioning, defendant argues that the court lacked authority to excuse the prospective juror in the absence of a challenge for cause by one of the parties.

It is true, as defendant argues, that neither Crim. P. 24 nor §XX-XX-XXX, C.R.S.1998, both of which address challenges for cause, expressly gives the court authority to excuse a juror sua sponte.

In Keady v. People, supra, the supreme court declined to hold that such a practice was error where the prosecution had not exhausted its challenges, there was no showing that the jury was unfair or incompetent, and the defendant thus was not prejudiced by the court's action. More recent decisions from other jurisdictions have generally upheld sua sponte excusals for cause, but have cautioned against such excusals when there is a question as to whether the juror is in fact unqualified to serve on the jury. See Judah v. State, 654 So.2d 994 (Fla.App.1995)

; People v. Beasley, 251 Ill.App.3d 872, 190 Ill.Dec. 919, 622 N.E.2d 1236 (1993); Alvarado v. State, 822 S.W.2d 236 (Tex.App.1992).

Here, the trial court concluded, based on its questioning, that the prospective juror could not render an impartial verdict based on the law and the evidence. If the court's assessment was correct, excusal would have been mandated under §XX-XX-XXX(1)(j) (state of mind evincing enmity or bias toward the defendant or the state), and the court would have been required to sustain the prosecution's challenge for cause. See People v. Macrander, supra.

Further, even if we were to assume it was error in this case to excuse the juror sua sponte because there was still a question as to whether he was qualified to serve, reversal of defendant's conviction on this basis would not be warranted. As noted, because the prosecutor did not exhaust her peremptory challenges, the defendant cannot establish prejudice resulting from the court's action. See Keady v. People, supra.

II.

Defendant next raises various related errors which, he contends, deprived him of his right to have the jury consider whether he acted in the heat of passion. We perceive no basis for reversal.

We note at the outset that under the statutory scheme applicable to defendant's case, heat of passion manslaughter was a separate offense, having all the elements necessary to prove second degree murder plus additional elements involving heat of passion. In 1996, the General Assembly eliminated the offense of heat of passion manslaughter and made heat of passion a factor in mitigation of second degree murder. Walker v. People, 932 P.2d 303 (Colo.),cert denied, 522 U.S. 883, 118 S.Ct. 212, 139 L.Ed.2d 147 (1997).

A.

Defendant asserts that the trial court's instruction on lesser offenses precluded the jury from returning a verdict on heat of passion manslaughter. We disagree.

After instructing the jury on the elements of first degree murder, the trial court gave a collective instruction (Instruction 13) on the elements of second degree murder, heat of passion ("provoked passion") manslaughter, reckless manslaughter, and criminally negligent homicide. Instruction 13 referred to these as "lesser included offenses" of first degree murder, and instructed the jury that the burden was on the prosecution to prove every element of any lesser included offense beyond a reasonable doubt. It added: "If you decide that the prosecution has proven each of the elements of the crime charged, or of a lesser included offense, you should find the defendant guilty of the offense proven," and concluded: "While you may find the defendant not guilty of any or all of the crimes...