People v. James

• Decision Date: 08 August 2005
• Docket Number: No. 03CA0409.,03CA0409.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy Lee JAMES, Jr., Defendant-Appellant.
• Court: Colorado Supreme Court

Page 91

117 P.3d 91

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy Lee JAMES, Jr., Defendant-Appellant.

No. 03CA0409.

Colorado Court of Appeals, Division V.

December 16, 2004.

Certiorari Denied August 8, 2005.

COPYRIGHT MATERIAL OMITTED

Ken Salazar, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Jami L. Vigil, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Roy Lee James, Jr., appeals the judgments of conviction entered upon jury verdicts finding him guilty of second degree kidnapping of a robbery victim, obstructing a peace officer, and third degree assault. We affirm.

In retaliation for a recent incident, members of a rival gang, including defendant, abducted the victim, drove him around Colorado Springs, and had him telephone members of his own gang to appear at a park for a fight. When they did not appear, however, the victim was once again driven around town, then stripped of all his clothing and money, and released. During the evening, he had been taunted, threatened, beaten, and burned with a cigarette.

Although charged with numerous offenses, defendant was ultimately convicted only of the three crimes mentioned above. He was sentenced to concurrent terms of imprisonment, the longest of which was sixteen years in connection with the kidnapping count.

I. Evidence of Gang-Related Activity

Defendant contends that the trial court erred in admitting irrelevant and prejudicial evidence about gangs, gang affiliations, gang culture, and gang retaliation. We disagree.

Evidence is relevant if it tends to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. CRE 401.

Relevant evidence is excludable if it is "unfairly" prejudicial, that is, if it has an "undue tendency to suggest a decision on an improper basis, commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror." Masters v. People, 58 P.3d 979, 1001 (Colo.2002)(quoting People v. District Court, 785 P.2d 141, 147 (Colo.1990)). For the evidence to be excludable, however, the danger of unfair prejudice must substantially outweigh the legitimate probative value of the evidence. CRE 403. A trial court is given broad discretion to determine the relevance and relative probative value and unfair prejudice potential of evidence. See People v. Saiz, 32 P.3d 441, 446 (Colo.2001).

A trial court's decision to admit evidence is reviewed for an abuse of discretion and will only be overturned if the decision was arbitrary, unreasonable, or unfair. In reviewing the trial court's determination, we assume the maximum probative value that a reasonable fact finder might give the evidence and the minimum unfair prejudice to be reasonably expected. People v. Webster, 987 P.2d 836, 840 (Colo.App.1998).

Evidence of a defendant's membership and activities in a gang may be admitted, as res gestae evidence, to provide the fact finder with a complete and full understanding of the events surrounding the crime and the context in which the crime occurred. See People v. Martinez, 24 P.3d 629, 633-34 (Colo.App.2000)(evidence helped explain motive for crime); People v. Mendoza, 876 P.2d 98, 102-03 (Colo.App.1994)(same).

Evidence about gang culture is admissible if relevant to explain a circumstance of the crime, see People v. Atkins, 844 P.2d 1196, 1202 (Colo.App.1992), to show a motive for the crime itself, or to understand a witness's change in statement or reluctance to testify. See People v. Martinez, 113 Cal.App.4th 400, 7 Cal.Rptr.3d 49, 59 (2003); Edge v. State, 275 Ga. 311, 567 S.E.2d 1, 3 (2002).

Similarly, evidence about gang retaliation, including fear thereof, is admissible to explain a witness's change in statement or reluctance to testify. See People v. Skinner, 53 P.3d 720, 724 (Colo.App.2002)(no error found after evidence admitted establishing "code of silence" between inmates in DOC; testimony of witnesses regarding fear of retaliation for being a "snitch" was relevant to explain why the victim and other witnesses had given conflicting statements); see also People v. Sanchez, 58 Cal.App.4th 1435, 69 Cal.Rptr.2d 16, 24 (1997)(evidence that witness is afraid to testify and fearful of gang retaliation relevant to credibility of witness; not necessary to show threats against witness were made by defendant personally); People v. Maldonado, 240 Ill.App.3d 470, 181 Ill.Dec. 426, 608 N.E.2d 499, 504 (1992)(same); United States v. Santiago, 46 F.3d 885, 890 (9th Cir.1995)(same; noting also that evidence of witness's fear of retaliation, without specifying any particular acts of intimidation, does not qualify as Fed.R.Evid. 404(b) evidence).

In this case, the trial court admitted evidence of gang affiliation, gang culture, and gang retaliation as it related to the motive for the crimes charged. And the court admitted gang retaliation-related evidence that was relevant to explain the uncooperative attitudes, "losses" of memory, reluctance to testify, and changed statements of specific witnesses. We agree with defendant that this evidence was prejudicial, but only in the sense it was legitimately damaging to defendant's case. Consequently, we conclude that the trial court did not abuse its discretion in admitting this evidence.

We note, further, that the trial court did not indiscriminately permit reference to gangs and gang-related activities. It admonished the parties to find and use synonyms for the term "gang" or "gangs"; it also precluded the prosecution from inquiring about a specific incident involving alleged intimidation of a witness by defendant's gang prior to trial.

Moreover, the trial court instructed the jury, following the close of all the evidence, that:

Guilt may not be inferred from mere association. Membership in a gang is not a crime. Therefore your decision shall not be affected by evidence, without more, that the defendant was a member of a gang. You are expected to carefully and impartially consider all of the evidence and follow the laws as stated by the Court.

We presume the jury followed this instruction. See People v. Martinez, supra, 24 P.3d at 634 (same instruction).

On a related matter, we reject defendant's assertion that reversal is required because the prosecutor stated, in rebuttal closing argument, that the victim had been released from jail to alleviate his fear of being hurt or killed if he had to testify and was returned to jail. Because defendant made no objection to the remark, reversal is not warranted in the absence of plain error. Inasmuch as the prosecution's argument was made in response to defendant's prior argument, namely that the victim had been let out of jail to induce him to build a case against an innocent man, we perceive no basis for finding plain error. See People v. Ramirez, 997 P.2d 1200, 1211 (Colo.App.1999)("A prosecutor is allowed considerable latitude in responding to the argument made by opposing counsel."), aff'd, 43 P.3d 611 (2001).

II. Lay or Expert Opinion Testimony

Defendant next argues that reversal is required because the trial court admitted, as lay testimony, gang culture evidence provided by two police officers. We are not persuaded.

In People v. Stewart, 55 P.3d 107, 124 (Colo.2002), the supreme court held that where "an officer's testimony is based not only on [his] perceptions and observations of the crime scene, but also on [his] specialized training or education, [he] must be properly qualified as an expert before offering testimony that amounts to expert testimony." The Stewart court did not specifically address whether knowledge in an area, gained through on-the-job experience, qualifies as specialized knowledge that may only be conveyed by way of expert opinion. We need not resolve that issue here.

Here, based on their training, education, and experience, the two officers testified about (1) gang members, including defendant, having street names or monikers; and (2) gang culture, and particularly the code of silence by which gang members live.

Defendant did not object to the testimony of the two officers on the ground now asserted. Consequently, reversal is not warranted in the absence of plain error. Crim. P. 52(b). Plain error is error that is obvious, substantial, and grave; to qualify, the error must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Moore v. People, 925 P.2d 264, 268-69 (Colo.1996).

The two officers were endorsed by both the prosecution and the defense as witnesses, although neither was specifically endorsed as an expert witness. And defendant asked numerous questions during cross-examination to further illuminate nuances of gang culture; indeed, defense counsel went so far as to refer to one of the officers as an "expert on gangs" during her own closing argument. Under these circumstances, the trial court had no duty to act sua sponte to prevent the officers' testimony. See People v. Petschow, ___ P.3d ___, ___, 2004 WL 2136945 (Colo.App. No. 01CA1684, Sept. 23, 2004)(no plain error where defendant asked officer, who had not been qualified as an expert witness, for his "professional opinion" on several occasions).

Moreover, any error was harmless in light of similar evidence, presented through other witnesses, about gang monikers, gang culture, and gangs' code of silence. See People v. Stewart, supra, 55 P.3d at 124-25.

III. Mistrial

We also reject defendant's contention that a mistrial was warranted because when asked to identify defendant, a witness stated, "He is over there with the public defender."

A mistrial is a drastic remedy that is warranted only when prejudice to the accused is so substantial that its effect on the jury cannot be remedied by...