People v. Hernandez

• Decision Date: 25 April 1991
• Docket Number: No. 89CA0616,89CA0616
• Citation: 829 P.2d 394
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Leo HERNANDEZ, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 394

829 P.2d 394

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Leo HERNANDEZ, Defendant-Appellant.

No. 89CA0616.

Colorado Court of Appeals Div. I.

April 25, 1991.

Rehearing Denied May 23, 1991.

Certiorari Denied April 20, 1992.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., A. William Bonner, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Law Office of Stanley H. Marks and Richard A. Hostetler, Richard A. Hostetler, Denver, for defendant-appellant.

Opinion by Judge DUBOFSKY.

Defendant, Leo Hernandez, appeals a judgment of conviction entered on jury verdicts finding him guilty of possession and distribution of cocaine and of possessing 28 grams or more of cocaine. We affirm.

Two confidential informants told a Denver detective that they had located individuals who possessed a large quantity of cocaine. After a sample of the drug was provided to the detective, he and several other policemen arranged to meet with the suspects to purchase the cocaine.

The People's evidence showed that while the suspects were discussing the transaction with the undercover police officers, defendant was asked where the "stuff" was and he pointed to a bag on the floor. Defendant then took out two "bricks" of cocaine from the bag and gave one to an undercover officer. Defendant also participated in bargaining for the price of the cocaine and stated that he and his friends could provide cocaine on a regular basis. Two undercover police officers indicated that defendant was in charge of the operation.

After his arrest, defendant made statements in both English and Spanish describing how he had obtained the cocaine from a bar in Albuquerque, New Mexico, and then brought it to Colorado.

During trial, defendant claimed that he was set up by the informants and was merely present during these criminal transactions. Defendant thus claims that he was not an accessory to the crimes charged because he did not participate in them.

I.

Defendant argues that the prosecutor's opening statement and closing argument were inflammatory, prejudicial, and improper and therefore, his conviction should be reversed. We agree with defendant's characterization of the statements, but disagree that the conviction should be reversed.

Two statements made by the prosecution are at issue. During opening statement, the prosecutor stated:

"Sometimes it takes a rat to catch a rat, and that's going to be a part of what we are dealing with in this trial here. [The informants] were not police officers, they were doing a job. A job which ultimately benefits this community but is not a savory job."

Later in closing argument, the prosecution, in referring to the confiscated cocaine, stated:

"This was offered to sell to the men, women, and children of Denver, Colorado, by these defendants."

A.

We initially address the propriety of the prosecution using the term "rat" in opening statement to describe the defendant.

Initially, we note that the decisions addressing the use by the prosecution of pejorative terms to describe a criminal defendant have arisen primarily in the context of closing arguments. But, since opening statements are more restrictive than closing arguments in permitting argument, analogies, and hyperbole, if such statements are improper in closing argument, they are, a fortiori, improper during the opening statement. See Pacific Fire Insurance Co. v. Overton, 256 Ala. 400, 55 So.2d 123 (1951); 1 ABA, Standards for Criminal Justice, Standard 3-5.5 (2d ed.1982). See generally Henwood v. People, 57 Colo. 544, 143 P. 373 (1914) (describing purposes and scope of opening statement).

Defendant's counsel did not object to the statement in question at trial, and thus, our review of this issue is confined to a plain error analysis. See People v. McClure, 779 P.2d 864 (Colo.1989). Under this standard of review, the prosecutor's remark must be "particularly egregious" to warrant a new trial. People v. Diefenderfer, 784 P.2d 741 (Colo.1989).

The courts have uniformly condemned as improper a prosecutor using such terms as "rat," "dog," or "animal," to describe a defendant. United States v. Davila Williams, 496 F.2d 378 (1st Cir.1974) (unacceptable for a prosecutor to state "what you have is a bunch of rats with a bunch of names"); United States v. Scaglione, 446 F.2d 182 (5th Cir.1971) (prosecutor's argument to jury to "make the rats run from the sinking ship" was found to be improper); Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966) (error for prosecutor to ask "how can you rehabilitate a mad dog?").

We agree with those jurisdictions which have determined that it is highly improper for the prosecutor to characterize defendant in such terms. Such terminology is impermissibly derogatory and inflammatory. These statements not only improperly dehumanize the defendant but incorrectly focus the jury's determination of the case away from the evidence and onto the defendant's supposed non-human status. Furthermore, such remarks are inconsistent with the proper role and dignity expected of the prosecutor for the government and, therefore, cannot be permitted. See Taylor v. United States, 413 F.2d 1095 (D.C.Cir.1969).

However, despite their impropriety, in determining whether such statements warrant reversal, we must look at the frequency of the statements, see Wilson v. People, 743 P.2d 415 (Colo.1987), and determine if the comments so undermined the basis of the conviction that the verdict should be set aside. Here, the improper statement occurred only once, and we conclude that it did not so undermine the basis for the conviction that reversal is warranted.

In this case, there is overwhelming evidence of defendant's guilt. The undercover officers testified that defendant was the leader of the group of men who possessed and offered to sell the cocaine, and his behavior during the sale indicates that to be the case. Also, all three officers were present when defendant gave them part of the cocaine and made comments showing his involvement in the criminal activity. Furthermore, defendant confessed to these crimes in both English and Spanish after having similarly been given Miranda warnings in both those languages. Therefore, we do not consider the prosecutor's remark as having so undermined the fundamental fairness of the trial that it casts a doubt on the reliability of the verdict. See People v. McClure, supra.

B.

Defendant next argues that the prosecution's general reference in opening statement and specific reference in closing argument about the impact of drugs on the community, including women and children, were also improper. Again there was no contemporaneous objection, and thus, we also address these comments under the plain error standard.

Opening statement is limited to the facts which the party intends to prove at trial. Closing arguments are limited to the facts and the inferences therefrom, which have been proved at trial.

Here, there was no evidence presented as to who, absent police intervention, would have purchased and used these particular drugs. Therefore, it was improper for the prosecutor to make these statements. However, we conclude again that the prosecutor's remarks did not undermine the fundamental fairness of the trial and, therefore, do not constitute plain error.

II.

Defendant next argues that dismissal of the charges is mandated by virtue of the prosecution's failure to disclose in a timely manner relevant information about the informants' prior criminal records and their history of receiving payments from the police. We disagree.

After the prosecution rested its case, defense counsel moved for dismissal because of the prosecution's failure to provide timely discovery. The trial court determined that the prosecution had failed to provide timely information about the confidential informants' prior criminal records and their payments by the police department. It concluded, however, that, since defendant had obtained much of this information before the trial commenced and since defendant had not requested either a continuance or further orders from the court regarding this discovery, the sanction of dismissal...