People v. Evans, 81CA0042
| Decision Date | 23 June 1983 |
| Docket Number | No. 81CA0042,81CA0042 |
| Citation | 674 P.2d 975 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gregory EVANS, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, Gregory L. Evans, appeals his convictions based on jury verdicts finding him sane at the time of the commission of the offenses and then, in the trial on the charges, finding him guilty of first degree murder, second degree burglary, robbery, attempted first degree murder, and first degree sexual assault. We affirm.
The defendant first contends that the trial court erred during the trial on the issue of sanity by improperly restricting the direct examination of a psychiatrist called by the defense. We do not agree.
This witness had not examined the defendant, and had not been called for the purpose of testifying as to defendant's sanity. He testified at considerable length concerning the nature of "minimal brain dysfunction", a condition which a previous expert witness said defendant had.
During the course of his testimony, he was asked whether he had an opinion as to whether minimal brain dysfunction "may present a foundation for a finding of insanity." The prosecutor objected. The court sustained the objection on the grounds that the question as worded was speculative, irrelevant, and did not apply to the facts of this case.
No offer of proof was made as to what the witness' answer would have been, and defense counsel asked no further questions of this witness. Absent an offer of proof, we are unable to determine whether refusal of this testimony, and any follow-up testimony, was prejudicial. Therefore, this ruling cannot be considered as a basis for reversal. Massie v. People, 82 Colo. 205, 258 P. 226 (1927); C.R.E. 103(a)(2). See Larsen v. Archdiocese of Denver, 631 P.2d 1163 (Colo.App.1981).
Furthermore, the previous defense witness had already testified that defendant suffered from this malady, had described it in great detail, and had given his opinion that, as a result of it, defendant was insane. Admission or rejection of cumulative evidence is within the trial court's discretion. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969); C.R.E. 403. There was no abuse here. See Dungaard v. People, 176 Colo. 38, 488 P.2d 1101 (1971).
Defendant next contends that, during the guilt phase of the trial, the court erred in dismissing one of the jurors over objection of defense counsel and in replacing him with an alternate juror. We disagree.
Crim.P. 23(a)(7) and § 16-10-106, C.R.S.1973 provide that "[w]here a jury of twelve has been sworn to try the case, and any juror by reason of illness or other cause becomes unable to continue until a verdict is reached, the court may excuse such juror...." (emphasis supplied) Crim.P. 24(e) and § 16-10-105, C.R.S.1973 further provide that alternate jurors may be called to replace "jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties...."
The jurors had been sequestered for eight days when the bailiffs reported a jury problem to the court. One of the jurors was quite upset at the way the jury was being handled by one of the bailiffs. He had become upset over the choice of restaurants selected by the bailiffs and felt that one of the bailiffs was incompetent. He had also had a disagreement with a fellow juror roommate and had raised some unsubstantiated allegations regarding the telephone transmitter. The juror could not say whether the phone had been used or not and his roommate denied all knowledge of a telephone transmitter.
At a hearing conducted by the court, this juror stated that he told his former roommate, ...
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...jury, not to a jury composed of any particular individuals. People v. Howard, 211 Cal. at 325, 295 P. at 334; accord, People v. Evans, 674 P.2d 975 (Colo.App.1983). We hold that the trial court's use of random selection to choose the alternate juror was error, but, in the absence of any pre......
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...not entitle him to a jury composed of any particular individuals. People v. Tippett, 733 P.2d 1183, 1196 (Colo.1987); People v. Evans, 674 P.2d 975, 977-78 (Colo.App.1983). When, through unforeseen circumstances, a juror becomes unable to continue to serve before the case is submitted to th......
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