People v. French
| Decision Date | 03 November 2005 |
| Docket Number | No. 03CA2477.,03CA2477. |
| Citation | 141 P.3d 856 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Oscar FRENCH, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Oscar French, appeals the judgment of conviction entered upon jury verdicts finding him guilty of reckless vehicular homicide and leaving the scene of an accident involving death, both class four felonies. Defendant also appeals the aggravated range sentence imposed upon his vehicular homicide conviction. We affirm.
While driving in a construction zone at a speed in excess of the posted limit, defendant hit the car traveling ahead of him, crossed into the opposite lane, and crashed head-on into an oncoming car. Defendant fled the scene of the accident on foot before police arrived. The driver of the oncoming car died, and the driver of the car ahead of defendant was seriously injured.
Following defendant's conviction, the trial court sentenced him to serve an aggravated term of twelve years in the custody of the Department of Corrections on the vehicular homicide count and six years on the hit-and-run count, to run concurrently. This appeal followed.
Defendant first asserts the trial court deprived him of his right to a fair trial by denying his motion for a second continuance. We disagree.
The decision to grant or deny a motion for continuance is within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. People v. Rodriguez, 914 P.2d 230, 268 (Colo.1996); People v. Gagnon, 703 P.2d 661, 663 (Colo.App.1985). "To say that a court has discretion in resolving [an] issue means that it has the power to choose between two or more courses of action and is therefore not bound in all cases to select one over the other." People v. Crow, 789 P.2d 1104, 1106 (Colo.1990)(quoting People v. Milton, 732 P.2d 1199, 1207 (Colo.1987)).
A defendant must demonstrate actual prejudice resulting from the denial of a continuance before it will be considered as a basis for reversal. People v. Chambers, 900 P.2d 1249, 1253 (Colo.App.1994); People v. Denton, 757 P.2d 637, 638 (Colo.App.1988).
Here, two weeks before his original trial date, defendant moved for a continuance, asserting the need to obtain expert witnesses. The trial court granted a continuance of three months. Defendant then retained a brain injury expert who was expected to testify that defendant received a head injury in the accident that so incapacitated him that he did not knowingly leave the accident scene. Defendant also retained an accident reconstruction expert to testify that he was not driving recklessly at the time of the accident and to respond to the prosecution's accident reconstruction expert.
One week before trial, defendant moved for a second continuance. The trial court denied the motion.
We reject defendant's contention that the brain injury expert did not have enough time to complete his investigation and conduct a clinical interview. Defendant hired the expert at least two months before trial, and the clinical interview would have taken approximately two to three hours. While defendant asserted that this expert had unexpectedly been required to travel out of state, he did not explain why the testing this expert proposed could not have been completed before trial.
Nor do we perceive any prejudice under these circumstances. The examination and testing this expert proposed to perform on defendant would have occurred eight months after the accident and thus would likely have been of marginal value.
Moreover, the witness testified at trial in general terms about the kind of impact necessary to cause a head injury and the kind of behavior expected from a person who suffered a closed head injury. Another witness provided evidence that defendant was suffering from some of those effects following the accident. Hence, defendant in fact introduced the kind of evidence he desired to present.
We likewise reject the assertion that the accident reconstruction expert did not have sufficient time to complete his reconstruction. The expert had two full months and was well aware of the trial date. Moreover, the expert testified at trial and was able to rebut the prosecution's expert effectively. Defendant offers no explanation of how any further tests or calculations would have added significantly to this expert's opinion.
Defendant nevertheless contends the prosecution violated Crim. P. 16 by failing timely to disclose its final accident reconstruction report and photos of the accident, which warranted the continuance. We disagree.
Here, the prosecution's disclosure of the final accident reconstruction report was untimely. However, previous versions had been provided to defendant well in advance of trial. And the prosecution made the photos available within a reasonable time after defendant requested them.
In any event, even if we assume, without deciding, that the late disclosures violated Crim. P. 16, the result would be the same. Failure to comply with discovery rules constitutes reversible error only when a defendant can demonstrate prejudice, Salazar v. People, 870 P.2d 1215, 1220 (Colo. 1994), and none has been shown here.
To the extent defendant contends he was denied the ability to refute the prosecution's accident reconstruction report, we reject that contention also. At trial, defense counsel engaged the prosecution's accident reconstruction expert in a lengthy and detailed cross-examination. Defendant's own accident reconstruction expert also testified at length about the inadequacies of the police investigation and their accident reconstruction techniques.
Accordingly, we conclude the trial court did not abuse its discretion or abridge defendant's right to a fair trial in denying the motion for a second continuance.
Defendant next asserts the trial court erroneously admitted irrelevant evidence from the victim's husband about the victim's background. We agree, but conclude the error was harmless.
The determination of whether evidence is relevant lies within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. See People v. Saiz, 32 P.3d 441, 446 (Colo.2001).
All evidence must meet the threshold standard of relevance. See CRE 402. Evidence is relevant when it has any tendency to make a fact of consequence more probable or less probable than it would be without the evidence. CRE 401; People v. Madson, 638 P.2d 18, 28 (Colo.1981).
Still, "[e]vidence that serves as background information about persons, subjects, or things in a trial is generally admissible although it may not relate to a consequential fact." J. Weinstein & M. Berger, Weinstein's Evidence ¶ 401.04[4][a], at 401-36 (2d ed.2005). However, background evidence must somehow assist the court in determining the probative value of other evidence that affects the probability of a fact of consequence. See Weinstein, supra, ¶ 401.04[4][a], at 401-36.
Here, the husband's testimony consisted entirely of background information, including that he and his wife had been married for twenty-five years and had five children together, and a few details about how he learned of the accident and his wife's death. The record does not reveal that any of the testimony was directly relevant to an issue in the case. Therefore, we do not perceive that this background evidence assisted the court or the jury in determining the probative value of other evidence that affected the probability of a fact of consequence. Hence, it was irrelevant.
Because defendant objected to the admission of this evidence, we must next determine whether the error is harmless. See People v. Martinez, 734 P.2d 650, 652 (Colo.App.1986). The proper inquiry in determining whether an error requires reversal is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings. Tevlin v. People, 715 P.2d 338 (Colo.1986); People v. Carlson, 712 P.2d 1018 (Colo.1986).
Here, we fail to see how the error substantially influenced the verdict or affected the fairness of the trial. The testimony was brief, the prosecutor did not dwell on it in closing argument, and the trial court instructed the jury not to be swayed by sympathy or prejudice. See People v. Martinez, supra, 734 P.2d at 652 (); State v. Wade, 200 W.Va. 637, 490 S.E.2d 724, 739 (1997)(harmless error to admit evidence that victim had a twelve-year-old child). Accordingly, reversal is not warranted.
Defendant next asserts the trial court deprived him of his Sixth Amendment and due process rights to a jury trial by impermissibly imposing an aggravated range sentence. We disagree.
Generally, a trial court has broad discretion in sentencing decisions, and its determination will not be overturned on appeal absent an abuse of discretion. People v. Watkins, 684 P.2d 234, 239 (Colo.1984); Triggs v. People, 197 Colo. 229, 231, 591 P.2d 1024, 1025 (1979). However, review of constitutional challenges to sentencing determinations is de novo. Lopez v. People, 113 P.3d 713, 720 (Colo.2005).
Vehicular homicide is a class four felony, see § 18-3-106(1)(a), (c), C.R.S.2005, which carries a presumptive range sentence of two to six years. Section 18-1.3-401(1)(a)(V)(A), C.R.S.2005. However, the court may impose a sentence of up to twice the maximum term authorized in the presumptive range if...
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