People v. Maass, 96CA1070

• Decision Date: 13 November 1998
• Docket Number: No. 96CA1070,96CA1070
• Citation: 981 P.2d 177
• Parties: 98 CJ C.A.R. 5733 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James C. MAASS, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 177

981 P.2d 177

98 CJ C.A.R. 5733

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

No. 96CA1070.

Colorado Court of Appeals Div. V.

Nov. 13, 1998.

Rehearing Denied Dec. 10, 1998.

Certiorari Denied July 26, 1999. ^*

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Robert M. Petrusak, Senior Assistant Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David F. Vela, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by Judge BRIGGS.

Defendant, James C. Maass, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder after deliberation, first degree felony murder during a kidnapping, conspiracy to commit first degree murder after deliberation, conspiracy to commit first degree felony murder, and second degree kidnapping. We affirm the convictions for first degree murder after deliberation, conspiracy to commit first degree murder after deliberation, and second degree kidnapping. We vacate the convictions for first degree felony murder and conspiracy to commit felony murder and remand the cause for correction of the mittimus.

Defendant and another man were involved in the consumption and sale of drugs. At trial, defendant's girlfriend testified that defendant and the other man learned that a woman they knew had become a police informant. A meeting was arranged with the woman at defendant's apartment. When she arrived, she was confronted by defendant, his girlfriend, and another drug user.

To learn what information the woman had disclosed, defendant threatened, among other things, to cut off her fingers with a knife. She related the information she said had been provided to the police.

Everyone present then shared drugs. Later, the other man arrived with more drugs. After a brief conversation with defendant, he gave the woman a syringe of drugs, which she injected. He said that she was "going to be with her kid, that she was going to have to work hard favors for these people [on whom she had informed]."

The woman left in a car with defendant. Her body was found a short time later. She had been shot multiple times in the head.

Defendant and the codefendant were arrested, charged, and scheduled for trial together. Both filed various motions to sever their trials. They asserted, among other things, that the jury would have difficulty in separating the evidence and law applicable to each, that prejudicial evidence would be admissible against one and not the other, and that their defenses were antagonistic. The trial court denied the motions.

Defendant then requested that he and the codefendant each be granted the same number of peremptory challenges as the prosecutor. The trial court denied the motion. However, it granted one additional peremptory challenge and gave eight to each, so that their total was equal to the prosecutor's statutory allotment of sixteen.

After the jury was selected, but before any evidence was presented, the codefendant again moved for severance. The basis asserted this time was the need for a continuance. The codefendant desired to impeach defendant with a recent conviction in federal court, but the conviction would not be final until sentencing.

At this point, the trial court granted the motion. This left only defendant to be tried.

Defendant immediately requested a short continuance so that counsel could "switch gears" and also moved for mistrial so that a new jury could be selected. The court granted a one-day continuance but refused to declare a mistrial. The case proceeded to trial with the jury that had been selected, and it found defendant guilty on all charges.

I.

Defendant first contends that the trial court, having granted the codefendant's motion to sever trials after the jury had been selected, erred in rejecting his motion for mistrial so that he could select a new jury. He claims that the court thereby violated his statutory right to exercise peremptory challenges and his constitutional right to due process. His argument is that, as the sole remaining defendant, he was entitled to select a jury with the same number of peremptory challenges as the prosecutor, and without the involvement of a codefendant who had an antagonistic theory of defense. Defendant further argues that the need to select a new jury was even greater here because the codefendant had used a peremptory challenge to dismiss a potential juror defendant had wanted on the jury. We find no error.

A.

In People v. Gardenhire, 903 P.2d 1165 (Colo.App.1995), a division of this court addressed a due process challenge to § 16-10-104(1), C.R.S.1998. The statute provides, among other things, that in a capital case involving codefendants, the exercise of peremptory challenges is to be made and considered as the joint peremptory challenge of all defendants.

The defendant in Gardenhire asserted that § 16-10-104(1) violated his constitutional right to due process because both the prosecutor and the codefendant had been able to exercise peremptory challenges against defendant's interest, thereby limiting his ability to select a jury consistent with his defense. He argued that the court's refusal to grant him the same number of peremptory challenges as the prosecutor directly impacted his right to a fair and impartial jury.

In rejecting the constitutional challenge, the division in Gardenhire recognized that the strategies and theories of one codefendant may detract from those of another. It nevertheless concluded, consistent with most other courts that have addressed the issue, that requiring codefendants to share peremptory challenges comports with fundamental fairness in light of the exigencies of a joint trial. See also United States v. Phillips, 874 F.2d 123 (3d Cir.1989)(holding that in cases with multiple defendants, a codefendant must use peremptory challenges in conjunction with other defendants, even if it means losing a favorable juror or using a challenge differently than it would have been used in a separate trial). We are not persuaded to reach a contrary conclusion.

B.

Defendant seeks to distinguish Gardenhire because the trial court there had properly denied a motion for severance, and the trial proceeded to conclusion with both defendants. In contrast, the trial court here did eventually grant the codefendant's request for separate trials, but only after the jury had been selected. He argues that, as a sole defendant, he should have been allowed to select a new jury.

The issue presented is one of first impression in Colorado. However, it has been addressed by other courts.

In United States v. Amer, 824 F.2d 906 (11th Cir.1987), the trial court rejected the pre-trial requests by the defendant and his two codefendants for separate trials. One of the codefendants then agreed to enter a guilty plea. The trial proceeded against the defendant and the remaining codefendant.

After the jury was selected, the government announced it would call the former codefendant to testify against the other two. Counsel for the remaining codefendant renewed his motion to sever on the grounds that his cross-examination would reveal incriminating information about a prior conviction involving the witness and the defendant. The government joined in the motion.

The trial court in Amer granted the motion. However, it then refused the sole remaining defendant's motion for a mistrial. The Eleventh Circuit affirmed:

At the time [the] jury was chosen, there were two codefendants. Unless it was improper for the two codefendants to have been jointly tried in the first place, there was no violation of the rule [governing peremptory challenges]. For example, if two codefendants are tried, and mid-trial one pleads guilty, the other codefendant would not be entitled to a new jury chosen exclusively by him.

....

The remaining question, therefore, is whether the trial judge erred in not granting a severance prior to jury selection. The issue is not, as petitioner would have us believe, whether the trial judge ultimately granted a severance based on the same grounds that were presented in support of the prior motion to sever; rather, the inquiry is concerned with whether a severance was mandated at an earlier point.

United States v. Amer, supra, 824 F.2d at 907-908 (emphasis in original).

We agree that, when a trial court does not initially err in denying a motion to sever, its later decision, after the jury has been selected, to grant a codefendant's motion does not necessarily require that the court also grant the remaining defendant's motion for a mistrial. If the jury was fairly selected in accordance with the applicable law, and if no facts are presented that show the jury as finally selected was other than representative and impartial to the remaining defendant, the trial may proceed to its conclusion. See United States v. Amer, supra ; see also United States v. Sandoval, 847 F.2d 179 (5th Cir.1988); United States v. Marcy, 814 F.Supp. 673 (N.D.Ill.1992); cf. Williams v. State, 939 S.W.2d 703 (Tex.App.1997); but see Goode v. State, 740 S.W.2d 453 (Tex.Crim.App.1987).

We must therefore initially determine whether the trial court erred in denying the motions for severance made before the jury was selected. If not, then the trial court violated neither defendant's statutory right to exercise peremptory challenges nor his constitutional right to due process.

C.

The right to severance is determined under Crim. P. 14 and § 16-7-101, C.R.S.1998. Crim. P. 14 provides as follows:

If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in any indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts,...