People v. Hamrick

• Decision Date: 01 February 1979
• Docket Number: No. 78-045,78-045
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jesse Boyd HAMRICK, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1333

624 P.2d 1333 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Jesse Boyd HAMRICK, Defendant-Appellant. No. 78-045. Colorado Court of Appeals, Div. II. Feb. 1, 1979.
Rehearing Denied March 1, 1979.
Certiorari Granted June 11, 1979.

Page 1335

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., David K. Rees, Asst. Atty. Gen., Denver, for plaintiff-appellee.

John E. Myles, Englewood, for defendant-appellant.

VAN CISE, Judge.

On the evening of January 14, 1977, defendant, Jesse Hamrick, and a companion, Jean Fernandez, went to the home of Howard Baumert (the victim) with whom Fernandez was acquainted, to borrow some money. After the trio had been drinking whiskey and listening to music for a couple of hours, the defendant went into the victim's bedroom, found a cudgel in the form of a nightstick, returned, and brutally beat the victim. He died a short time later. Defendant then took the victim's watch and wallet containing $76, and fled with Fernandez.

In the trial at which Fernandez was the state's principal witness, the defendant was convicted of felony murder during robbery, second degree murder intent to cause serious bodily injury, aggravated robbery, and theft. The defendant appeals and we affirm.

I.

Defendant first contends that it was error for the trial court to deny his two

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motions for a mistrial. The first motion was made after the defendant was escorted to the courtroom in handcuffs by an armed sheriff's officer, passing certain prospective jurors who were waiting in the hallway.

A defendant is entitled to appear before the jury unhandcuffed, "except as the necessary safety and decorum of the court may otherwise require." Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946). The defendant should therefore not be brought into open court and before the entire jury panel in handcuffs when no necessity therefore exists. Montoya v. People, 141 Colo. 9, 345 P.2d 1062 (1959).

However, in the present case, defendant made no showing that any of the prospective jurors who viewed him in handcuffs actually sat on the jury which convicted him. Absent that showing, we will not infer that defendant has been prejudiced. See People v. Rogers, 187 Colo. 128, 528 P.2d 1309 (1974); People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973).

Defendant also contends that it was error to deny his motion for a mistrial made after the following exchange took place on cross examination between the witness Fernandez and defense counsel:

"Q: Was it a condition of your plea bargain that the District Attorney agreed to a personal recognizance bond for you?

"A. Not until I

"Q: Not until you testified?

"A: No, no; wait a minute now. I took a lie detector test first."

Whether a motion for mistrial should be granted is within the sound discretion of the trial court. People v. Rogers, supra; People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973). The People argue that the trial court did not abuse that discretion because the witness' statement was not prejudicial to defendant. We agree.

The witness was admonished by the District Attorney prior to trial not to mention the lie detector test. Her statement was made during vigorous cross examination and was apparently spontaneous and inadvertent. Also, the outcome of the test was not disclosed to the jury. Thus we cannot say that the trial court abused its discretion in denying a mistrial.

II.

Defendant contends that it was error for the trial court to deny his motions for judgment of acquittal, made after the People rested and at the conclusion of all the evidence. These motions were directed only to the charge of first degree murder after deliberation, whereas on this charge defendant was ultimately convicted of the lesser included offense of second degree murder intent to cause serious bodily injury. See §§ 18-3-102(1)(a) and 103, C.R.S.1973 (1976 Cum.Supp.). He claims prejudice, however, because the jury was instructed on a higher degree of homicide than the evidence supported, and this rendered a conviction of the lesser offense more certain. He contends that the prosecution failed to establish a prima facie case that the murder occurred "after deliberation." We disagree.

"The term 'after deliberation' means not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act." Section 18-3-101(3), C.R.S.1973 (1976 Cum.Supp.). We agree that the use of a deadly weapon is not in itself...