People v. Ferrero

• Decision Date: 30 December 1993
• Docket Number: No. 91CA0814,91CA0814
• Citation: 874 P.2d 468
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas D. FERRERO, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 468

874 P.2d 468

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas D. FERRERO, Defendant-Appellant.

No. 91CA0814.

Colorado Court of Appeals Div. IV.

Dec. 30, 1993.

Rehearing Denied Jan. 27, 1994.

Certiorari Denied June 13, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Chief Judge STERNBERG.

Defendant, Thomas Ferrero, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of first degree murder. We affirm.

I.

Defendant first contends that the trial court erred by denying his challenge for cause as to one of the prospective jurors. We disagree.

A defendant has the fundamental right to a fair trial by a panel of impartial jurors, and, to protect that right, the trial court must exclude prejudiced or biased persons from the jury. Section 16-10-103(1)(j), C.R.S. (1986 Repl.Vol. 8A). And, a trial court's denial of a challenge for cause will be set aside only if the record discloses a clear abuse of discretion. People v. Prator, 856 P.2d 837 (Colo.1993); Crim.P. 24(b)(1)(X).

A prospective juror's expression of concern or indication of a preconceived belief as to some facet of the case does not automatically require exclusion for cause. People v. Russo, 713 P.2d 356 (Colo.1986). If the court is satisfied that the juror will be able to set aside the preconceived notion and render an impartial verdict according to the law and the evidence admitted at trial, the juror should not be disqualified. People v. Drake 748 P.2d 1237 (Colo.1988). In making that determination, the trial court may consider a potential juror's assurances that the juror can fairly and impartially serve on the case. See People v. Sandoval, 733 P.2d 319 (Colo.1987).

In this case, during preliminary voir dire procedures, the prospective juror was questioned individually regarding her statements on a questionnaire that she had formed an opinion regarding the defendant's guilt. When asked about her ability to set aside this preconceived opinion, the juror expressed concern about her ability to do so. However, she also indicated that she would follow the court's instructions and base her decision in the case solely on the evidence presented in the courtroom.

The following day, the potential juror was called to the jury box to replace a panel member who had been excused on a peremptory challenge. When questioned again, the juror stated that she was not aware of anything that would disqualify her to sit as a juror on the case, that she could apply the law as instructed by the court, and that she would base her decision on testimony presented in court. She also stated that she had no reservations about sitting on the jury based on anything she had read or heard.

During the preliminary round of questioning, the potential juror's responses and statements were at times inconsistent. However, viewed as a whole, her responses do not reveal an unyielding belief that the defendant was guilty. Cf. Nailor v. People, 200 Colo. 30, 612 P.2d 79 (1980) (after extensive voir dire, juror still harbored serious doubts about her fairness and impartiality). The full context of her responses on the first day combined with her final, unequivocal answers on the second day support the trial court's conclusion that the juror could set aside any preconceived opinion and base her decision on the law and the evidence admitted at trial.

Under all of the circumstances disclosed by the record, we perceive no abuse of discretion in the denial of defendant's challenge for cause. See Beeman v. People, 193 Colo. 337, 565 P.2d 1340 (1977).

II.

Defendant next asserts that the trial court erred in denying his motion for mistrial on grounds that the prosecutor was using peremptory challenges to exclude Hispanic prospective jurors in violation of the Equal Protection Clause of the Fourteenth Amendment. We disagree.

A prosecutor may not use peremptory challenges to exclude prospective jurors solely on the basis of race. It is presumed, however, that the prosecutor exercised such challenges on constitutionally permissible grounds. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Fields v. People, 732 P.2d 1145 (Colo.1987). The burden is on the defendant to prove the existence of purposeful discrimination. People v. Cerrone, 854 P.2d 178 (Colo.1993).

In People v. Cerrone, supra, the supreme court adopted Batson 's three-step process for evaluating claims of racial discrimination in jury selection under the Equal Protection Clause. First, the defendant must make a prima facie showing that the State has excluded potential jurors on account of race. Then, if the requisite showing is made, the burden shifts to the state to articulate a race-neutral explanation for excluding the jurors in question. Finally, if the state presents a neutral explanation, the trial court must consider all relevant circumstances to determine whether the defendant has established purposeful discrimination. People v. Cerrone, supra.

A defendant may establish a prima facie case of purposeful discrimination by showing that the jury in question was selected under a practice providing the opportunity for discrimination, the persons excluded were members of a cognizable racial group, and members of that group were substantially underrepresented on the jury. A prima facie showing is made if the totality of the relevant facts gives rise to an inference of discriminatory purpose. People v. Cerrone, supra.

Here, we conclude that the defendant failed to establish a prima facie case of unconstitutional discrimination in the prosecutor's use of peremptory challenges. The prosecution had exercised five of its twelve peremptory challenges when defendant moved for a mistrial. Defendant claimed that, because three of the five persons excluded were Spanish-surnamed and thus members of a cognizable group, see Fields v. People, supra, the prosecution was using its peremptories in a racist manner.

However, the prosecutor then used three more of his remaining seven challenges, and none of those were used to excuse Hispanics. Spanish-surnamed individuals were not substantially underrepresented on the jury; indeed, two Hispanics were on the final panel and one of the alternates was Hispanic. And, neither the defendant nor the victim were Hispanic. See People v. Cerrone, supra, 854 P.2d at 188, n. 16 (evidence of racial identity between defendant and excused person may still serve evidentiary function).

Because we conclude that defendant failed as a matter of law to make a prima facie case of purposeful discrimination, we find it unnecessary to determine whether the prosecutor articulated a race-neutral explanation for excluding the jurors in question. The record supplies sufficient neutral reasons to sustain the prosecutor's use of peremptory challenges. See Fields v. People, supra, 732 P.2d at 1158, n. 21. Therefore, we find no abuse of discretion in the trial court's denial of defendant's motion for mistrial.

III.

Defendant's tendered instructions concerning self-defense and manslaughter stated that, in determining whether defendant's acts in self-defense were reasonable, the jury could consider prior threats and acts of violence by the deceased which were known to defendant. Defendant argues that these instructions related to his theory of defense and, since they were supported by the evidence, the trial court erred in refusing to submit them to the jury. We disagree.

We find that defendant's tendered instructions were unnecessary since the issues addressed by them were adequately encompassed within other instructions given to the jury. See People v. Nunez, 841 P.2d 261 (Colo.1992); People v. Tippett, 733 P.2d 1183 (Colo.1987) (defendant not entitled to duplicitous defense instructions).

Defendant also tendered an instruction which contained definitions of terms used in the "heat of passion manslaughter" instruction. However, the language in the court's heat of passion manslaughter instruction was properly based on § 18-3-104(1)(c), C.R.S. (1986 Repl.Vol. 8B) and COLJI-Crim. No. 9:08 (1983).

Moreover, the terms used in that instruction are susceptible to general understanding by persons of common intelligence and need not be further defined. See People v. Lanari, 811 P.2d 399 (Colo.App.1989), aff'd in part and rev'd in part on other grounds, 827 P.2d 495 (Colo.1992).

The instructions as a whole adequately informed the jury as to the offense. Accordingly, the trial court's decision not to define the issue further was not erroneous. See People v. Deadmond, 683 P.2d 763 (Colo.1984).

IV.

Defendant asserts that the trial court erred in allowing the jury to review during deliberations defendant's videotaped confession which had been admitted into evidence. Again, we disagree.

Jurors may not have unsupervised access during deliberations to a videotape of a witness ' out-of-court statement that was admitted into evidence in a criminal case. People v. Montoya, 773 P.2d 623 (Colo.App.1989). We have previously held, however, that the same rule does not apply to evidence of a voluntary confession by the defendant. People v. Miller, 829 P.2d 443 (Colo.App.1991).

In People v. Miller, supra, we determined that the transcript of a defendant's confession, which has been admitted into evidence, may be taken into the jury room during deliberations so long as the defense is given an opportunity to point out any circumstances that may undermine its credibility. A confession which has been shown by the state to be free from coercive conditions is among the strongest kind of physical evidence the prosecution may produce. Thus, during its deliberations, the jury may have...