People v. Lee, 93CA1212
| Decision Date | 27 July 1995 |
| Docket Number | No. 93CA1212,93CA1212 |
| Citation | 914 P.2d 441 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian LEE, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Jacque L. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Cherner and Blackman, Barbara S. Blackman, Denver, for defendant-appellant.
Opinion by Judge BRIGGS.
Defendant, Brian Lee, appeals the judgments of conviction for first degree extreme indifference murder, three counts of attempted first degree extreme indifference murder, second degree assault, conspiracy to commit first degree assault, and conspiracy to commit menacing. Defendant asserts that the trial court erred in failing to declare a mistrial or provide an alternative remedy after two witnesses did not appear to testify and in failing to suppress evidence of a weapon found in a vehicle parked behind defendant's residence. He also contends the verdicts were logically and legally inconsistent. We vacate the judgment of conviction of attempted extreme indifference murder pertaining to the victim of the second degree assault. We affirm the other judgments of conviction. We also affirm the sentences imposed for those convictions, and we remand the cause to the trial court with directions to amend the mittimus.
On June 13, 1992, defendant, his brother, and a friend were in a night club when fighting started between two gangs. The three were members of a group affiliated with one of the gangs.
Police broke up the fight, and defendant left in a car with his brother, the friend, and a cousin. In a videotaped statement later made to the police, the cousin stated they were angry at the way they perceived the other gang had treated another of their friends.
They passed a vehicle driven by a member of the other gang who had been involved in one of the fights. According to the cousin, defendant said he would show them "what a real gang-bangin' is."
The four drove to the residence of defendant and his brother, who each retrieved a gun. The cousin told the police he got out of the car after statements by defendant and his brother. The brother said that he did not want the cousin to "get in any more trouble" and that they were "about to do some dirt." Defendant said, "There is going to be a murder tonight son, you don't need to get involved." Defendant and his brother, together with the third member of the group, got back into the car, with defendant as driver.
They soon spotted the other vehicle. Defendant pulled up alongside it, and occupants of both cars exchanged gang taunts. The occupants of defendant's car opened fire. The other vehicle crashed into a median. Defendant drove away without stopping.
The driver of the other vehicle was shot in the leg. The passenger sitting behind him was shot in the chest and died at the scene. The other two passengers were not wounded.
Police arrived shortly after the shootings. One of the passengers told the officers she knew two of the people that shot at their car, naming and giving the address of defendant and his brother. Other officers located those two, together with the friend and the cousin, at the brothers' residence. The passenger witness was taken there by police and identified defendant and the others as the occupants of the vehicle from which the shots had been fired.
After the four were arrested, the cousin and the passenger witness gave videotaped statements which, together with the earlier statements of the passenger witness, led to the issuance of a search warrant for the brothers' residence. Upon obtaining the search warrant, the police searched the house, seized a vehicle parked at the back of the property, and later found in it a semi-automatic weapon, commonly referred to as a "Tec-9."
The cousin was released from custody. Defendant and the other two suspects were tried together and convicted of the same crimes. Each was sentenced to life plus fifty years.
Defendant contends that the trial court abused its discretion in failing to declare a mistrial or grant alternative remedies upon the failure of the passenger witness to return for further testimony and of another witness to testify at all. We perceive no reversible error.
The grant or denial of a motion for mistrial and the restriction of cross-examination are within the discretion of the trial court. Its rulings will not be overturned on review absent a showing of an abuse of that discretion and substantial and undue prejudice to the defendant. See People v. Chastain, 733 P.2d 1206 (Colo.1987); People v. Raffaelli, 647 P.2d 230 (Colo.1982); People v. Smith, 620 P.2d 232 (Colo.1980). To show an abuse of discretion, an appellant must establish that, under the circumstances, the trial court's decision was manifestly arbitrary, unreasonable, or unfair. See People v. Ibarra, 849 P.2d 33 (Colo.1993).
This same standard is applicable upon review of a trial court's decision whether to grant a continuance, see People v. Denton, 757 P.2d 637 (Colo.App.1988), strike testimony, see Raullerson v. People, 157 Colo. 462, 404 P.2d 149 (1965), or admit evidence. See People v. Ibarra, supra.
The passenger witness was the principal eyewitness to the shooting. At trial she recanted her earlier identifications. She also testified briefly that on the night of the shooting she had not been drinking and was not intoxicated. But, after her testimony, she submitted a letter to the court in which she stated she had used alcohol, marijuana, and LSD the night of the shooting.
Both the defense and prosecution made extensive but unsuccessful efforts to locate the witness for further testimony on this matter. On the basis of her unavailability, defendant requested that the court either declare a mistrial, grant a continuance, strike her testimony, or admit or read her letter. The court refused all of defendant's requests.
The trial court denied defendant's motion for mistrial because the witness had been subject to extensive cross-examination at trial and the jury could draw its own conclusions from the videotape whether she was intoxicated that night and the following morning. The court likewise found no basis to continue the trial or strike her testimony. Finally, the court refused to admit the letter because it was hearsay and would have no effect on the outcome of the case.
Defendant contends that because the passenger witness was the principal eyewitness to the shooting, her ability to perceive that event and the impact that her drug use would have on her perception were relevant. While we agree that, had the witness been available, her additional testimony might have been relevant, we perceive no abuse of discretion in the court's refusal to provide the relief requested.
During both her direct and cross-examinations, contradictions between the witness' trial testimony and her prior statements were obvious. For example, in the videotaped statement she made in the hours following the shooting, she specifically recalled that defendant was driving the car and that his brother did the shooting. However, at a preliminary hearing, she testified she did not know who fired the shots and could only identify defendant and his brother as occupants of the car from which the shots were fired. At trial, her testimony was that she did not remember who was in the other car.
When asked to explain the contradictions of her prior statements and her trial testimony, the witness stated only that she did not know or did not remember. She admitted meeting with the police earlier but denied having told them she had been pressured by defendant's girlfriend. She admitted she did not like coming to court and that she had failed to show up for court appearances.
As the trial court noted, the witness' credibility was "already tattered." Recalling her to testify on this issue would only have introduced yet another contradiction and thus would have been cumulative. Furthermore, as to the collateral issue of the witness' intoxication, the jury had the opportunity to view the videotape made a short time after the shootings.
The letter the witness submitted to the court after her testimony was hearsay and the circumstances under which it had been written were unknown. Whether or when the witness could be located was likewise unknown. Defendant failed to establish that by not being able to recall the witness he was substantially and unduly prejudiced. In these circumstances, we find no abuse of discretion in the trial court's refusal to grant any of defendant's alternative requests concerning the passenger witness.
The other witness who failed to testify did not see the shooting. However, he had told police that, at approximately 9:00 p.m. on the evening before the shooting, the passenger witness asked him to hold two guns she possessed but that he refused. He also had said the passenger witness told him the driver who had been shot in the leg had been shot by someone else earlier in the evening.
This witness appeared under subpoena on the first day of trial and was ordered to return at a later date. However, he did not thereafter appear in court.
Defendant moved for a mistrial. The trial court refused, finding that the testimony of the witness would provide impeachment only on a collateral matter; that there was other, conflicting evidence on this matter; and that testimony on this point would not be of great assistance to the jury.
Defendant contends that the testimony would have constituted evidence establishing the existence of weapons in the other car at the time of the shooting and was therefore critical to his theory of self-defense. However, while it could be inferred from such testimony that, because the passenger witness had possessed weapons earlier in the evening, weapons were in the other...
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