People v. Fury

• Decision Date: 07 October 1993
• Docket Number: No. 91CA1695,91CA1695
• Citation: 872 P.2d 1280
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas P. FURY, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1280

872 P.2d 1280

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas P. FURY, Defendant-Appellant.

No. 91CA1695.

Colorado Court of Appeals Div. IV.

Oct. 7, 1993.

Rehearing Denied Nov. 4, 1993.

Certiorari Denied May 9, 1994.

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

David F. Vela, Colorado State Public Defender, Lindy Frolich, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge PLANK.

Defendant, Thomas P. Fury, appeals from the judgment entered on a jury verdict finding him guilty of vehicular eluding, driving under suspension, violation of a restricted license, and reckless driving. We affirm.

On August 12, 1991, an officer of the Arvada Police Department saw the defendant's car turn north through an intersection, accelerating as it did so. The officer turned on his siren and overhead lights and began to follow the car, but he lost sight of it. Soon thereafter, the officer was flagged down by a motorist who told the officer that she had just seen the defendant's car stuck in a ditch a few blocks down the street.

At trial, the motorist testified that she had been traveling southbound when she saw the defendant's car, which was traveling northbound, trying to pass the car in front of it. In so doing, the defendant's car partially crossed over the double yellow line into the southbound lane causing the motorist to move her car over to the far right side of her lane to avoid a collision.

The investigating officer went to the place specified by the motorist and found the defendant's vehicle in a ditch by the side of the road. The defendant's wife was sitting in the driver's seat and the defendant was seated on the passenger's side. Initially, they both told the officer that the wife had been driving the car. The officer told the defendant that he did not believe this and warned him that it is a crime to supply misinformation to a police officer. Defendant then admitted that he was the driver.

An accident investigation officer arrived at the accident scene. The defendant and the officers all got inside the van to continue with the accident investigation. During the conversation which ensued, the defendant admitted that he had attempted to elude the police car. Defendant was then advised of his constitutional rights, which he agreed to waive. After the defendant repeated his earlier confession, he was placed under arrest.

I.

On appeal, defendant first contends that the trial court erred by refusing to grant a mistrial following a discovery violation on the part of the prosecution. We disagree.

When the accident investigation officer arrived at the scene of the incident he interviewed eyewitnesses and wrote down notes from those interviews. During discovery, the defendant received a copy of the diagram from the accident report but did not receive a copy of the officer's notes taken at the accident scene.

The trial court acknowledged that the prosecution had committed a discovery violation by not producing those notes prior to trial. And, after hearing the officer's testimony in-camera, it ruled that the witness could not give expert opinions nor would the witness be allowed to testify to the path of the defendant's car. The witness was allowed to testify concerning the diagram previously furnished the defendant.

Defendant then moved for a mistrial which the trial court denied because it found that there was no prejudice to the defendant resulting from the discovery violation.

Defendant claims that the failure to grant a mistrial denied him his right to due process of law because he was unable to hire an expert to evaluate the officer's notes and because defense counsel could not use the notes in his cross-examination of the prosecution's witnesses. Thus, the defendant asserts, defense counsel was unable to prepare an adequate defense, and as a result, he was denied his right to a fair trial. We perceive no reversible error.

Reversal for failure to disclose certain information to the defendant is mandated only if the information might have affected the outcome of the trial. People v. Thatcher, 638 P.2d 760 (Colo.1981). Thus, to warrant reversal, a defendant must show that the prosecution's discovery violation could have affected the jury's decision.

Here, the trial court reasoned that the defendant could have hired an expert witness to examine the diagram of the accident scene despite the fact that the defense had not received the notes taken by the officer. We agree with the trial court's conclusion. Adequate information was furnished to the defendant to allow him to consider hiring an expert.

A trial court is allowed a significant amount of discretion in deciding a motion for a mistrial. Accordingly, its decision will not be disturbed on appeal "absent a gross abuse of discretion and prejudice to the defendant." People v. Collins, 730 P.2d 293, 303 (Colo.1986). Here, there was no abuse of discretion.

II.

Defendant next asserts that the trial court committed reversible error by refusing to instruct the jury that eluding a police officer is a lesser-included offense of vehicular eluding. We disagree.

If one charged offense establishes every essential element of another charge, it is a lesser-included offense. People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). Thus, to be lesser-included it must be impossible to commit the greater offense without also committing the lesser one. People v. Martinez, 640 P.2d 255 (Colo.App.1981).

The statutory test adopted in People v. Rivera, supra, requires us to compare the vehicular eluding statute, § 18-9-116.5, C.R.S. (1993 Cum.Supp.), with the eluding a police officer statute, § 42-4-1512, C.R.S. (1993 Repl.Vol. 17), and determine whether the greater offense of vehicular eluding contains every essential element of the lesser offense of eluding a police officer.

Upon applying that test to the offenses at issue, we conclude that eluding a police officer is not a lesser-included offense of vehicular eluding.

The crime of eluding a police officer, § 42-4-1512, provides:

Any operator of a motor vehicle who the officer has reasonable grounds to believe has violated a state law or municipal ordinance, who has received a visual or audible signal such as a red light or a siren from a police officer driving a marked vehicle showing the same to be an official police, sheriff, or Colorado state patrol car directing the operator to bring his vehicle to a stop, and who willfully increases his speed or extinguishes his lights in an attempt to elude such police officer, or willfully attempts in any other manner to elude the police officer, or does elude such police officer commits a class 2 misdemeanor traffic offense.

The statutory language requires that the operator of a motor vehicle receive a visual or audible signal from a police vehicle, such as a red light or siren, directing the operator to stop. This signal must come from a marked vehicle showing it is an official police, sheriff, or Colorado State patrol car.

The crime of vehicular eluding, § 18-9-116.5, states:

Any person who, while operating a motor vehicle, knowingly eludes or attempts to elude a peace officer also operating a motor vehicle, and who knows or reasonably should know that he is being pursued by said peace officer, and who operates his vehicle in a reckless manner, creating a substantial risk of bodily injury to another person, commits vehicular eluding. Vehicular eluding is a class 5 felony; except that vehicular eluding which results in bodily injury to another person is a class 4 felony and vehicular eluding which results in death to another person is a class 3 felony.

To be convicted of vehicular eluding, the motor vehicle operator does not have to receive any type of signal from a marked police car. Rather, the latter offense requires only that the driver know or reasonably should know that he is being pursued by a police officer. The fact that the driver knew or should have known of the pursuing police officer could be proven in the absence of an audible or visual signal from the officer. While proof of the use of a siren or light may be admitted on this charge to show defendant's knowledge, that...