People v. Hendrickson

• Citation: 45 P.3d 786
• Decision Date: 06 December 2001
• Docket Number: No. 00CA1024.,00CA1024.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Serena HENDRICKSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

45 P.3d 786

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Serena HENDRICKSON, Defendant-Appellant.

No. 00CA1024.

Colorado Court of Appeals, Div. II.

December 6, 2001.

Certiorari Denied April 22, 2002.¹

Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Springer and Steinberg, P.C., Harvey A. Steinberg, Stacey L. Ross, Denver, CO, for Defendant-Appellant. Opinion by JUDGE MARQUEZ.

Defendant, Serena Hendrickson, appeals a judgment of conviction entered on a jury verdict finding her guilty of one count of solicitation to commit first degree murder. We affirm.

In 1996, defendant's husband pled guilty to sexual assault on a child and aggravated incest. While incarcerated, defendant's husband learned of an inmate who purportedly could assist in setting up a murder for hire. He contacted that inmate regarding the murder of the prosecutor who handled his case. This inmate, unbeknownst to defendant's husband, had been assisting Department of Corrections (DOC) officials in discovering other inmates' plans to set up murders for hire. The inmate's main contact was a DOC investigator.

The investigator advised the inmate not to approach defendant's husband, but to keep him informed if defendant's husband pursued the plan. The inmate did not receive a sentence reduction for the information that he provided in this case.

Pursuant to DOC policy, the investigator later began to intercept correspondence and phone conversations between defendant and defendant's husband. Evidence was presented implying that defendant and her husband were devising a plan to kill her husband's prosecutor based upon the mistaken belief that her husband could be released from prison if they were successful.

Subsequently, the inmate received a note from defendant's husband stating: "I talked to my wife" and "she said the sooner the better ... her name is Serena." The note lists Serena's phone number and later states, "have him call my wife." The inmate passed the note on to the investigator, who, posing as a hit man, contacted defendant and her husband through notes and phone conversations. According to the investigator, in one phone conversation, defendant described the prosecutor in detail and agreed with the investigator on a price of $5000, with a vehicle as collateral. At the investigator's suggestion, defendant eventually met the investigator in a parking lot. They discussed how the investigator would do the killing, and defendant produced the unsigned title to the vehicle.

Defendant was charged with one count of solicitation of first degree murder and one count of conspiracy to commit first degree murder. The jury found her guilty only of the solicitation count. The trial court then sentenced her to a term of twelve years in the DOC.

I.

Defendant contends that the trial court's limitation on cross-examination of three government witnesses was prejudicial error. We disagree.

The right to confront witnesses against a criminal defendant is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and includes the right to be given an opportunity for effective cross-examination. It is constitutional error to limit excessively a defendant's cross-examination of a witness regarding the witness' credibility. People v. Gholston, 26 P.3d 1, 8 (Colo.App.2000).

Nevertheless, the trial court has wide latitude to place reasonable limits on cross-examination based on concerns about such factors as confusion of the issues or interrogation that would be repetitive or only marginally relevant. People v. Gholston, supra, 26 P.3d at 8.

The trial court must exercise its discretion to preclude inquiries that have no probative value, are irrelevant, or are prejudicial. People v. Hanna, 981 P.2d 627, 630 (Colo.App.1998). To show that the court abused its discretion, a party must show that the court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Gholston, supra, 26 P.3d at 8.

A. Cross-examination of "Informant Inmate"

During direct examination, the inmate admitted that he had four prior felony convictions. On cross-examination, defense counsel attempted to impeach the inmate regarding the convictions. The prosecution objected, and the trial court sustained the objection because each conviction had already been addressed on direct. The court explained to defense counsel, "If you want to question him as to something other than what he already said, you may." Defense counsel then proceeded to question the inmate about his age when he was convicted and the order in which he received the convictions. The defense also obtained an admission from the inmate that he had received a sentence reduction on one conviction in return for assistance on another murder for hire case.

Defendant has not demonstrated that the court's decision to preclude repetitive testimony regarding the prior felonies was manifestly arbitrary, unreasonable, or unfair. As such, we perceive no abuse of discretion. See People v. Gholston, supra.

B. Cross-examination of DOC Investigator

On direct examination, the investigator testified about the recorded phone conversations between defendant and her husband and those between the investigator and defendant. He also testified regarding his conversation with defendant in which he posed as a hit man in a parking lot.

During cross-examination, defense counsel attempted to draw the investigator's attention to particular portions of the transcript of his recorded conversation with defendant by having him read those portions aloud. The court repeatedly refused to allow him to do so, sustaining the prosecution's objection that the transcript spoke for itself.

Defendant contends that the trial court allowed the prosecutor to have defendant read portions of the transcript during her cross-examination and that the defense similarly should have been allowed to have the investigator read particular portions to demonstrate that he was in control of his conversation with defendant. We disagree.

The transcript was admitted into evidence and available for argument and the jury's scrutiny. Reading it aloud, therefore, would have been repetitive.

We thus conclude that the trial court did not abuse its discretion in limiting the cross-examination. See People v. Gholston, supra.

C. Cross-examination of the Prosecutor

The court refused to allow cross-examination of the prosecutor of defendant's husband as to the validity of that prosecution, specifically, whether a defendant's blood relation to the victim was an essential element of incest. The court ruled that the definition of incest was irrelevant to the charges against defendant and collateral to the case at hand.

Defendant contends that cross-examination on this issue should have been permitted because it would have helped establish that defendant's "beliefs regarding her husband were sincere and well grounded." Again, we disagree.

Such beliefs are irrelevant to the question of defendant's guilt. The fact that the jury asked a question about incest between blood and nonblood relatives is also irrelevant. See People v. Woods, 931 P.2d 530, 536 (Colo. App.1996)

(a trial court acts within its discretion when it excludes evidence offered solely for impeachment purposes that will introduce collateral issues into the trial).

II.

Defendant also contends that she suffered prejudicial error when the court refused to grant her motion for a mistrial after the prosecution published several pages from a transcript to the jury, contrary to a prior agreement to redact the first six pages of the transcript. We disagree.

A mistrial is a drastic remedy that is warranted only when the prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. Absent an abuse of discretion, a trial court's denial of a motion for mistrial will not be disturbed on appeal. People v. Scott, 10 P.3d 686, 689 (Colo.App.2000).

Here, prior to trial, the prosecution had agreed to redact the first six pages of the transcript of a taped telephone conversation that contained irrelevant but arguably prejudicial material. These pages contained a telephone conversation between defendant's husband and mother. However, that portion of the transcript was mistakenly published to the jurors before the prosecutor, in the jury's presence, asked that the transcripts be returned for editing.

Defendant moved for a mistrial because the transcript was not redacted and argued that retrieving it made it appear to the jury that the defense was hiding evidence.

The trial court denied the motion, finding that (1) the jurors had possessed the transcripts for only about three minutes; (2) jurors were still inserting them into their notebooks when the prosecutor asked that they be withdrawn; (3) the court had not seen any juror reading beyond the first page of the document; and (4) nothing in the first page of the document was so prejudicial that a mistrial was a "manifest necessity."

Further, the court gave a curative instruction, at defense counsel's suggestion, that the redacted information recorded a conversation between defendant's husband and someone other than defendant, that the parties had agreed that those pages were irrelevant, and that the jurors who had read any portion of the redacted pages should disregard them.

Our review of the first few pages of the transcript does not reveal them to be highly prejudicial. Although they contain some profanity and references to taking money under false pretenses, they do not clearly refer to defendant's crime. Under these circumstances, we perceive no abuse of discretion in the trial court's denial of a mistrial, especially in light of the curative instruction that was given. See People v. Dunlap, 975 P.2d 723, 744 (Colo.1999)

(reviewing court presumes that jury understood and heeded jury instructions).

III.

We also disagree with defe...