People v. Kinney, No. 04CA0781.

• Decision Date: 29 June 2006
• Docket Number: No. 04CA0781.
• Citation: 148 P.3d 318
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James KINNEY, Defendant-Appellant.
• Court: Colorado Court of Appeals

148 P.3d 318

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James KINNEY, Defendant-Appellant.

No. 04CA0781.

Colorado Court of Appeals, Div. I.

June 29, 2006.

Certiorari Denied November 27, 2006.

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge VOGT.

Defendant, James Kinney, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault. We affirm.

Defendant drove up to a woman on the street and spoke with her. She went with him to his apartment, where they had sex. The woman later told police that defendant had sexually assaulted her. Defendant claimed the encounter was consensual.

At trial, two other women testified that defendant had sexually assaulted them.

I.

Defendant contends the trial court violated his right to due process by improperly excusing a juror for cause. We conclude the trial court excused the juror on the basis of hardship, and that it did not abuse its discretion in doing so.

A trial court may excuse a prospective juror on the grounds of hardship, even over the objection of a defendant. People v. Isom, 140 P.3d 100, 2005 WL 3211628 (Colo. App. No. 03CA2518, Dec. 1, 2005); see § 13-71-121, C.R.S.2005 ("Before a jury is impaneled, the court shall inform the jurors if a trial is expected to last more than three trial days and may excuse a juror from performing juror service in that trial upon a finding of hardship or inconvenience, taking into account the expected length of the trial."). What constitutes hardship is a determination within the discretion of the trial court. See People v. Reese, 670 P.2d 11 (Colo.App.1983).

Trial here was scheduled for five days. At the beginning of jury selection, the trial court inquired whether anyone felt "that he or she would suffer undue or extreme hardship" if selected to serve for that length of time. Several jurors responded that they would. The juror at issue here, Juror V, told the court she was a teacher, could not get a substitute for more than three days, and was scheduled to do a type of assessment testing that a substitute could not handle. The trial court told the jurors it would defer ruling on excusals until after it had conferred with the attorneys.

After the lunch recess, the trial court did not immediately rule on the hardship issues, and the attorneys began their voir dire. During questioning by the prosecutor, Juror V had indicated at one point that she was not thinking about the prosecutor's question because her mind was on other things. She also stated that she might feel protective of defendant because she and he were of the same race.

After further questioning, the prosecutor challenged Juror V for cause, expressing doubt that she could be a fair and impartial juror. Defendant objected. The court then excused Juror V and an optometrist who had claimed hardship, explaining to the other jurors that the two who were excused "would probably have a better time being a juror in a different case at a different time."

The court later made the following record regarding its reasons for excusing Juror V:

[Juror V] is a school teacher. She ... used some language about being protective of blacks because she is of the same race. My main grounds for granting the challenge for cause on [Juror V] was because she made it abundantly clear in terms of time conflict that [she] is a teacher, they are doing some sort of [assessment] testing, and while a substitute could handle the regular teaching she was not comfortable having a substitute doing the . . . testing.... I had concern about her ability to concentrate on the case.... [T] hat is the main reason why [Juror V is] no longer serving on this case.

We do not agree with defendant that the trial court must be deemed to have excused Juror V for cause in response to the prosecutor's challenge. Even though the court initially stated that it was going to "grant the challenges" to Juror V and the optometrist, the context of that statement and the court's subsequent explanation make it clear that Juror V was excused for hardship. The court had previously indicated it would defer ruling on the hardship issues, and it addressed Juror V's excusal at the same time it excused another juror, the optometrist, who had similarly claimed hardship.

In sum, we have no basis for questioning the trial court's stated reasons for its dismissal of Juror V, and, in light of Juror V's explanation of her circumstances, dismissal for hardship was not an abuse of discretion. See People v. Reese, supra, 670 P.2d at 14 (no abuse of discretion to excuse "for cause" juror who claimed financial hardship).

II.

Defendant next contends his due process rights were violated by the trial court's refusal to allow him to introduce evidence, or have the jury instructed, that he was acquitted of sexually assaulting the two women who testified that he had previously assaulted them. We disagree.

A.

Prior to trial, the prosecution filed a notice of intent to introduce evidence that defendant had sexually assaulted a woman in 1999 and another woman in 2002. Defendant objected, and a hearing was held. The trial court found by a preponderance of the evidence that the prior assaults had occurred. It concluded that the proffered evidence was admissible under CRE 404(b) and People v. Spoto, 795 P.2d 1314 (Colo.1990), and that the evidence was not rendered inadmissible by defendant's acquittals on criminal charges arising out of the sexual assaults.

Before the witnesses testified, the prosecution filed a motion in limine to prohibit any comment on or reference to the outcome of the two previous sexual assault cases. Defendant argued that evidence of, or an instruction regarding, the acquittals was necessary to preclude the jury from speculating about whether he had been convicted in those cases. The prosecutor responded that the fact of acquittal was irrelevant and would simply serve to confuse the jury.

The trial court declined to instruct the jury as defendant had requested. Instead, it ruled that both sides would be prohibited from "talking about the outcome or even talking about the fact that charges had been brought against the defendant." Additionally, although the witnesses could be questioned about their testimony in prior "hearings," there was to be no reference to "prior trials."

The women then testified regarding the assaults, and the court gave and repeated an instruction stating that the testimony could be used only "for the purpose of showing lack of consent, common plan or scheme, intent or knowledge." In refusing defendant's renewed request for an acquittal instruction at the conclusion of the evidence, the court noted that it had heard no testimony that would warrant revisiting its prior ruling. The court again declined to alter its prior ruling when the jury sent out a note during deliberations that included a request to see "previous trial transcripts."

B.

Evidence of prior acts that otherwise qualifies for admission under CRE 404(b) is not rendered inadmissible by the defendant's acquittal on criminal charges arising out of those acts. See People v. Wallen, 996 P.2d 182 (Colo.App.1999)(defendant's acquittal in previous case did not collaterally estop court from admitting prior act evidence); People v. Conley, 804 P.2d 240 (Colo.App.1990) (same); see also Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (introduction of evidence relating to crime of which defendant had previously been acquitted does not violate double jeopardy or due process).

Defendant does not contend that his acquittals precluded the women's testimony regarding the prior sexual assaults, and he does not argue that their testimony failed to qualify as CRE 404(b) evidence. Rather, defendant asserts, as he did at trial, that he should have been permitted to introduce evidence of his acquittals or to have the jury instructed that he had been acquitted. In support of his argument, defendant relies on the fact that the Dowling Court found it significant that the jury in that case had been instructed that the defendant had been acquitted. We are not persuaded.

1.

Whether the jury must be informed of the defendant's acquittal in circumstances such as those presented here has not been addressed in Colorado.

In Dowling, the jury had been instructed that the petitioner had been acquitted on the prior charge, and it had also received an instruction concerning the limited purpose for which the prior act evidence was being offered. In holding that evidence relating to a crime of which a defendant had been acquitted did not violate double jeopardy or due process, the Supreme Court observed that such a conclusion was appropriate "[e]specially in light of the limiting instructions provided by the trial judge." Dowling, supra, 493 U.S. at 353, 110 S.Ct. at 674.

Courts that have considered the issue have generally concluded that Dowling does not require that the jury be advised of the defendant's acquittal, and that trial courts have discretion to determine, on a case-by-case basis, whether the acquittal is relevant and should be admitted. See United States v. Wells, 347 F.3d 280 (8th Cir.2003) (evidence of defendant's prior narcotics transactions was admissible under Dowling, and trial court was not required to instruct the jury that defendant had been acquitted on prior charges stemming from the narcotics transactions); United States v. Smith, 145 F.3d 458 (1st Cir.1998)(Dowling does not require an acquittal instruction when evidence of acquitted conduct is introduced); United States v. Tirrell, 120 F.3d 670 (7th Cir.1997)(Dowling does not require that jury be told of acquittal; therefore, appellate court would...