People v. Kenny

• Decision Date: 24 November 2000
• Citation: 30 P.3d 734
• Docket Number: 96CA0840
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert M. KENNY, Defendant-Appellant.
• Court: Colorado Court of Appeals

30 P.3d 734

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Robert M. KENNY, Defendant-Appellant.

No. 96CA0840.

Colorado Court of Appeals, Div. I.

November 24, 2000.

As Modified on Denial of Rehearing January 25, 2001.

Certiorari Denied September 10, 2001.

Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge METZGER.

Defendant, Robert M. Kenny, appeals the judgment of conviction entered following a jury verdict finding him guilty of second degree burglary and first degree sexual assault.He also appeals the trial court's order denying his Crim.P. 35(c) motion which alleged he had received ineffective assistance of counsel.We affirm the judgment of conviction, vacate the order, and remand the cause for a hearing on the Crim.P. 35(c) issues.

The prosecution's evidence indicated that on August 25, 1988, the victim was asleep in her bed when she was awakened and sexually assaulted by an intruder.During this incident, the victim's husband, from whom she was separated, came to the house.When the victim heard the sound of his truck in the driveway, she began to scream.He broke down the door and rushed into the bedroom, whereupon the intruder shouted, "She invited me over."The victim replied, "You liar, you liar."The intruder then claimed the victim had "picked him up at a bar."The intruder ran out of the house; the victim's husband chased him, but lost sight of him.

The police arrived shortly thereafter, and the victim told them her assailant was the man who lived in the house on the "front property" next to her home.They summoned defendant from inside that house and asked the victim's husband to identify him.Although he stated that, physically, defendant"looked like" the assailant, he was unable to make a positive identification.

The police also asked the victim to make an identification.First, she said, "I don't know."However, she testified at trial that, as she was walking away from defendant, she had told police, "I know that was him, I know he did it.I am absolutely positive."

No police officer testified to having heard the latter statements.The investigating detective's report stated the victim could not identify defendant as her assailant.Although defendant was questioned that night, he was released and no charges were filed at that point.

A few days after the incident, defendant moved from his house.He was arrested in Rhode Island in 1994 and returned to Colorado for trial.His first trial ended in a mistrial, but a second trial resulted in the convictions at issue here.Defendant was represented by the same attorney at both trials.In the interim, that attorney signed a joint petition for his immediate suspension from the practice of law, and, after defendant's second trial, the attorney was disbarred.SeePeople v. Mundis,929 P.2d 1327(Colo.1996).

After defendant commenced this appeal, the case was remanded at his request for the trial court to consider his Crim.P. 35(c)motion for postconviction relief based upon trial counsel's alleged ineffectiveness.The trial court denied the motion without a hearing.

DIRECT APPEAL

I.

Defendant contends the trial court committed reversible error by not making findings of fact concerning the merits of his motion to suppress the anticipated identifications of him by the victim and her husband at trial.We disagree.

"In evaluating the totality of circumstances to determine whether there is an independent basis for an in-court identification, five factors are to be considered: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the time which has elapsed between the crime and the confrontation."People v. Walker,666 P.2d 113, 119(Colo.1983).

Defendant's motion asserted that, because the victim and her husband had neither made a positive identification at the crime scene nor had they been shown a photographic lineup, and because over seven years had elapsed since the date of the alleged offense, it would be "highly prejudicial" to allow the victim and her husband to identify him at trial.

After a hearing, during which defense counsel argued the applicability of the Walker factors to the facts, the trial court denied the motion without making explicit findings on each of those factors.

While the entry of findings would have been useful, the court did make specific reference to the Walker holding, and such reference convinces us that the trial court did not commit reversible error.The record clearly shows the trial court considered defendant's written motion, conducted oral argument on the facts and issues raised, and evaluated those facts and issues in light of the pertinent law before making its ruling.

Thus, we reject defendant's contention.

II.

Defendant next asserts the trial court abused its discretion in denying his challenge for cause to a prospective juror who had been sexually assaulted as a child.We disagree.

We reject the People's assertion that defendant's failure to exercise a peremptory challenge on this juror deprives him of standing to raise the argument.Morrison v. People,19 P.3d 668(Colo.2000).

The standard of review of a trial court's ruling on a challenge for cause to a prospective juror is whether the trial court abused its discretion, Carrillo v. People,974 P.2d 478(Colo.1999), and the entire voir dire of the prospective juror must be examined.SeePeople v. Abbott,690 P.2d 1263(Colo.1984).We accord great deference to the trial court's rulings on challenges for cause because such decisions turn on an assessment of the prospective juror's credibility, demeanor, and sincerity.SeePeople v. Russo,713 P.2d 356(Colo.1986).

Here, the prosecutor, defense counsel, and the trial court questioned the prospective juror extensively.Although she indicated her past experiences made her "very sensitive" to issues of sexual assault, she stated that she"always" made an effort to be fair, that she could and would follow the trial court's instructions and put her personal feelings aside, that she would not require defendant to prove his innocence, and that she could return a verdict of not guilty.

In denying defense counsel's challenge for cause, the trial court stated: "I really made an effort.Had she really wanted to get out of this she could have said so when I asked her if she could be fair.It was clear she was able to separate the two issues.And even though she's had this experience as a child, it was clear to me in both her words and about the way that she expressed those words, she really could put those aside and be a fair juror. . . ."

The trial court's findings, when viewed in light of the entire voir dire examination of the prospective juror, show no abuse of discretion.The questions asked were pointed and specific concerning the relevant issues of bias and fairness, and the prospective juror's answers were equally direct and candid.The trial court's findings demonstrate its evaluation not only of the spoken words but also of the pertinent factors of credibility, demeanor, and sincerity.This was an appropriate exercise of discretion, and we will not disturb it on review.

III.

Defendant argues that, because testimony concerning the serious medical condition of the victim's four-year-old son was irrelevant and unduly prejudicial, the trial court erred in allowing it.We do not agree.

Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.People v. Gibbens,905 P.2d 604(Colo.1995).However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.People v. District Court,785 P.2d 141(Colo.1990);CRE 403.Unfair prejudice refers to an undue tendency on the part of admissible evidence to suggest to the jury an improper basis for its decision.People v. Nuanez,973 P.2d 1260(Colo.1999).

Trial courts are vested with broad discretion in making evidentiary rulings.People v. Ibarra,849 P.2d 33(Colo.1993).On review, we must give the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected.People v. Gibbens, supra.Absent an abuse of discretion, a trial court's ruling concerning the relative probative value and prejudicial impact of the evidence will not be disturbed.People v. Dunlap,975 P.2d 723(Colo.1999).

To show that a court abused its discretion by erroneously admitting evidence, a party must show that the court's decision was manifestly arbitrary, unreasonable, or unfair.People v. Czemerynski,786 P.2d 1100(Colo.1990).

Here, the trial court overruled defense counsel's objection and determined that, while the evidence had "marginal probative value," it was relevant to give content and context to the assailant's statement that the victim had "picked him up at a bar."

We cannot say that this decision was manifestly arbitrary, unreasonable, or unfair.Since the medical condition of the victim's son necessitated that he receive close supervision, and since that evidence counteracted the assailant's statement that the victim had picked him up at a bar, the evidence was relevant.Also, the trial court properly weighed the probative value of the limited testimony against the possibility of its unfair prejudice.

Moreover, the jury was instructed that neither sympathy nor prejudice should influence its decision, and defendant has not overcome the...