People v. Hayes

• Decision Date: 07 December 1995
• Docket Number: No. 94CA0018,94CA0018
• Citation: 923 P.2d 221
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Neoal G. HAYES, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 221

923 P.2d 221

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Neoal G. HAYES, Defendant-Appellant.

No. 94CA0018.

Colorado Court of Appeals,

Div. IV.

Dec. 7, 1995.

As Modified on Denial of Rehearing

Jan. 25, 1996.

Certiorari Denied Sept. 9, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Robert Mark Russel, First Assistant Attorney General, Denver, for Plaintiff-Appellee.

Ellen Toomey, Brighton, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Neoal G. Hayes, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of first degree and second degree assault. He also appeals his sentence. We affirm.

On January 18, 1993, Martin Luther King, Jr. Day, the victims, a young woman and her friend, had attended a celebration rally at the state capitol and had followed the crowd when it moved up the street. They observed an individual being assaulted by a group of people, and the first victim, the young woman, approached the group and attempted to break up the fight. One of the participants, later identified as defendant, punched her in the face twice.

After being struck, the first victim turned around and began walking away. Defendant then hit her again from behind, knocking her unconscious. As she lay on the ground, another youth jumped on her head.

When her friend, the second victim, tried to help her, a group of people punched and kicked him. Defendant joined this group and kicked the victim several times as he lay on the ground.

As a result of the assault, the first victim suffered severe injuries, including a broken nose, lacerations on her face, and a hole in her lip. The second victim received contusions on his head, neck, and back. A cameraman at the scene filmed the assaults on both victims.

The prosecution charged defendant, who was seventeen at the time of the incident, with first degree assault, second degree assault, and ethnic intimidation. Thereafter, the prosecution filed a motion to transfer the case from juvenile court to district court in order to have defendant tried as an adult.

Before the transfer hearing, defendant filed a motion to disqualify the juvenile court judge on the basis that, because the judge was blind, he would be unable to view the videotape of the assaults and fairly decide the transfer motion. The court denied the motion for disqualification and conducted the transfer hearing with the aid of a narrator who described the contents of the videotape. At the conclusion of the hearing, the juvenile court waived its jurisdiction and transferred the case to district court.

In district court, a jury convicted defendant of first and second degree assault, but acquitted him of ethnic intimidation.

The trial court sentenced defendant to consecutive terms of sixteen years for the first degree assault and eight years for second degree assault.

I.

Defendant first contends that the juvenile court judge erred in failing to disqualify himself by reason of his blindness. We disagree.

There is no suggestion that the juvenile court judge was biased or prejudiced, and the disqualification was not sought on that basis. The motion for disqualification was therefore not governed by either § 16-6-201, C.R.S. (1986 Repl.Vol. 8B) or Crim.P. 21, and the case law interpreting and applying those provisions provides virtually no helpful guidance for determination of this issue.

Both parties, in their briefs, have referred us to cases involving the disqualification of jurors by reason of physical disabilities. We agree that these cases, together with cases from other jurisdictions involving judges with disabilities, are instructive.

Defendant relies on People v. Trevino, 826 P.2d 399 (Colo.App.1991), in which a division of this court held that a defendant's right to a jury trial had been violated because one of the jurors, who was hearing-impaired, had not worn her hearing aid during the second day of a two-day trial. There, the division concluded that the juror had been unable to hear material testimony or to participate in meaningful discussions during the deliberation phase of the trial.

Unlike the juror in Trevino, however, who had acknowledged having missed portions of the trial as a result of her disability, the juvenile court judge here took substantial steps to ensure that he was fully aware of the contents of the videotape.

Recognizing the problem presented, and upon the recommendation of the guardian ad litem, the judge enlisted the aid of a reader for the blind to describe to him the events portrayed on the videotape. The individual selected to provide the description reviewed the five minute videotape for four hours and prepared a written report of its contents. He then described the contents, while the videotape was being played, during the transfer hearing. The prosecution conducted a detailed examination of the narrator during which defense counsel was given the opportunity to correct any errors or comment on any omissions. Defense counsel then cross-examined the narrator.

Significantly, defendant has not suggested in this appeal that the contents of the video were not fully and accurately described by the narrator or that he was denied the opportunity to challenge the completeness or accuracy of the description. Instead, he takes the position that the narration could not serve as a substitute for an actual viewing of the videotape by the juvenile court judge.

The overall issue is whether, because of the judge's disability, defendant was denied a fair hearing in violation of his due process rights. See People v. Caldwell, 159 Misc.2d 190, 603 N.Y.S.2d 713 (Crim.Ct.1993).

In People v. Brown, 62 N.Y.2d 743, 476 N.Y.S.2d 823, 465 N.E.2d 362 (1984), relied upon by defendant here, the New York Court of Appeals held that a blind judge should have recused himself from presiding at a hearing in which, because of his inability to see, he could not evaluate a photograph of a contested line-up. However, there is no indication in that opinion as to whether there had been an attempt to accommodate the judge's sight impairment.

In a later decision, the New York Court of Appeals adopted a more flexible approach and recognized that there may be safeguards that will protect a defendant's right to a fair trial and at the same time render disqualification unnecessary. Thus, in People v. Guzman, 76 N.Y.2d 1, 556 N.Y.S.2d 7, 555 N.E.2d 259 (1990), the court held that a hearing-impaired person was not, by reason of that impairment, automatically disqualified from service as a juror. The juror had been aided by a signing interpreter, and the trial court held that this accommodation protected the defendant's right to a fair trial.

In People v. Caldwell, supra, the court stated that the determination whether a blind juror should be disqualified is one which must be made according to the circumstances of each case, and taking into account reasonable accommodations which can be made. Thus, for example, documentary evidence can be read into the record and physical evidence not requiring actual observation can be described. People v. Caldwell, supra; Galloway v. Superior Court, 816 F.Supp. 12 (D.D.C.1993).

As the court recognized in People v. Guzman, supra, the factfinder--be it judge or juror--must at a minimum be able to understand all of the evidence presented and evaluate that evidence in a rational manner. In addition, any accommodation to allow the judge or juror to fulfill these duties must be reasonable and not itself interfere with defendant's fundamental trial rights.

Turning to this case, we note that a transfer hearing serves two purposes. The first is to determine whether there is probable cause to believe that the juvenile has committed the act for which transfer is sought. Section 19-2-806(2)(a), C.R.S. (1995 Cum Supp.). This portion of the hearing is equivalent to a preliminary hearing, and case law on preliminary hearings applies to this phase. People v. Juvenile Court, 813 P.2d 326 (Colo.1991).

The probable cause portion of defendant's transfer hearing was not affected by the judge's blindness. The videotape evidence was cumulative for this portion as defendant stipulated to his identity as the person who committed the assaults, and both victims testified concerning the extent of their injuries. Moreover, issues relating to a court's factual determination of probable cause are ordinarily rendered moot by a jury's guilty verdict. Kuypers v. District Court, 188 Colo. 332, 534 P.2d 1204 (1975).

In the second or social phase of a transfer hearing, the court must determine whether the interests of the juvenile or the community would be better served by the juvenile court waiving its jurisdiction and transferring the case to district court. Section 19-2-806(2)(b), C.R.S. (1995 Cum.Supp.).

With respect to defendant, the juvenile court had to consider: (1) the seriousness of the offenses and whether protection of the community required isolation of defendant beyond that afforded by juvenile facilities; (2) whether the offenses were committed in an aggressive, violent, premeditated or willful manner; (3) whether the offenses were against persons or property; (4) defendant's maturity; (5) his record and history; (6) the likelihood of rehabilitation; (7) the interest of the community in imposition of punishment commensurate with the gravity of the offense; (8) the impact of the offenses on the victims; and (9) the fact that defendant was sixteen or older at the time of the offenses and that the offenses would constitute acts of violence under § 16-11-309, C.R.S. (1986 Repl.Vol. 8B), if committed by an adult. Section 19-3-108(2)(b), C.R.S. (1986 Repl.Vol. 8B).

The videotape here was relevant to several factors the court was required to consider in the social phase of the hearing. Nevertheless, we conclude that the detailed narration of the...