People v. Manyik, Court of Appeals No. 13CA0043

• Decision Date: 24 March 2016
• Docket Number: Court of Appeals No. 13CA0043
• Citation: 383 P.3d 77,2016 COA 42
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Mark David MANYIK, Defendant–Appellant.
• Court: Colorado Court of Appeals

383 P.3d 77

2016 COA 42

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Mark David MANYIK, Defendant–Appellant.

Court of Appeals No. 13CA0043

Colorado Court of Appeals, Div. VII.

Announced March 24, 2016

Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Mark G. Walta, Alternate Defense Counsel, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE BERGER

¶ 1 Defendant, Mark David Manyik, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree murder, aggravated robbery, and tampering with physical evidence.

¶ 2 Manyik argues that (1) the prosecutor committed prosecutorial misconduct in opening statement by using the technique of “channeling”¹ ; (2) the trial court erred in allowing the prosecution to amend the aggravated robbery charge during trial; (3) the court erred in rejecting his tendered jury instruction about evaluating statements he made to police officers; (4) the court's jury instruction on the defense of mistaken belief of fact was incorrect; and (5) the court erred in excluding evidence of recorded statements he made during telephone conversations he had with family members when he was at the police station.

¶ 3 We agree with Manyik that the trial court erred in granting the prosecution's motion to amend the aggravated robbery charge, and we reverse his conviction on that charge. However, because none of his other contentions provide a basis for reversal, we affirm his convictions for second degree murder and tampering with evidence.

I. Facts and Procedural History

¶ 4 Evidence introduced at trial established that the victim had been in a relationship with Traci Adams for part of 2011, but they purportedly broke up around mid-year. Adams then became romantically involved with Manyik, and she moved into his house. However, the victim and Adams remained in contact and continued to socialize.

¶ 5 The day of his death, the victim was celebrating his birthday with friends. The victim's friends testified that beginning that afternoon, Adams called the victim ten to twenty times and sent numerous text messages inviting him to Manyik's house for dinner and sex. She told him then, or had previously told him, that Manyik would not be there because he was on a hunting trip.

¶ 6 The victim's friends described the victim as initially reluctant to accept the invitation, but he eventually decided to go. They testified that he left his house around 7 p.m. that night.

¶ 7 At around 7:40 p.m., Manyik called 911 and reported that he had just shot the victim. A recording of the 911 call was introduced into evidence and played for the jury at trial. During the call, Manyik said that the victim walked into his house and he shot the victim with a shotgun. In response to a question from the 911 operator, Manyik said that the victim was alive and lying outside the house on the front porch or the grass. Manyik also said that he was pointing a pistol at the victim, and throughout the recording, Manyik can be heard repeatedly telling the victim not to move or he would shoot him again.

¶ 8 When police officers arrived about fifteen to twenty minutes later, they found Manyik standing over the victim and pointing a gun at him. After Manyik was handcuffed and detained, medical personnel attended to the victim, who had suffered a shotgun wound

to the abdomen. The victim was transported by helicopter to the hospital and pronounced dead on arrival.

¶ 9 Police first interviewed Manyik and Adams that night. Manyik said that he did not know that the victim was coming over, and that the victim surprised him when he walked into the house. He said that he and the victim then struggled for his shotgun; during the struggle the victim was shot; and afterward, the victim stumbled out of the house and collapsed near the sidewalk. The police did not immediately arrest Manyik or Adams.

¶ 10 During the investigation into the victim's death, the police learned information that cast doubt on Manyik's and Adams' initial statements. Most notably, the victim's friends told police officers that Adams had invited the victim to Manyik's house the night of the shooting.

¶ 11 Several days after his first police interview, Manyik was interviewed again. During his second interview, he admitted that sometime before the victim arrived at his house, Adams had told him that the victim was on his way. In response to the interviewing detective's question whether Adams “convinced [him] to shoot [the victim],” he replied, “Pretty much.” The detective later asked him whether, regarding his plan of “leading [the victim] to the shooting,” he had succeeded, to which Manyik responded, “Yeah, probably.”

¶ 12 Additionally, although he had initially told the police that Adams was in the shower when the victim walked in, he said that Adams actually greeted the victim at the door, and only then did the victim walk into the house and see Manyik, who was holding the shotgun. Manyik said that the victim started walking toward him so he raised the shotgun, the victim grabbed it and pushed it down, and then Manyik picked it up and pulled the trigger.

¶ 13 Manyik also said that after he shot the victim, when he was pointing the pistol at him, Adams searched the victim's clothing to find the victim's cell phone. Manyik said that he later disposed of it. The police never recovered the phone.

¶ 14 Manyik was charged with first degree murder (after deliberation) and conspiracy to commit first degree murder. He was also charged with aggravated robbery and tampering with physical evidence based on the disposal of the victim's cell phone.²

¶ 15 At trial, Manyik's theory of defense was self-defense, and he also relied on Colorado's “make-my-day” statute.³ The prosecution introduced a substantial amount of evidence, including recordings of Manyik's police interviews, that tended to disprove his theory by showing that he knew that the victim was coming to his house and he had made preparations in anticipation of his arrival. That evidence included that Manyik had fired a “test shot” with his shotgun about fifteen minutes before the shooting and he had locked his dog in the garage (which the prosecution argued implied that he anticipated an altercation with the victim). When the detective asked Manyik during the second interview about the test shot, Manyik said if the victim did show up at his house, he was “gonna be damn ready.”

¶ 16 There was also evidence that Manyik shot the victim outside his house, not inside, thus rendering the make-my-day statute inapplicable. See § 18–1–704.5(1), C.R.S.2015

. No evidence of the victim's blood was found inside the house, and a police detective testified that the layout of the house made it impossible for the victim to have been shot inside the house in the way Manyik described. The detective also testified that although there was a hole in one of the walls in the house that could have been made by the butt of Manyik's shotgun, the hole's location was not consistent with Manyik's description of the gun firing while he struggled with the victim over the gun.

¶ 17 The prosecution further introduced evidence that the day before the shooting, Adams and Manyik reported to the police that an unknown person had been on Manyik's property, pointing to footprints near Manyik's house that they said they had found. They told police officers that they believed the victim was the trespasser. Manyik told the responding officer that if he saw the person who had been on his property again, he would shoot him, and Manyik left a message for another officer saying that the victim was going to “end up with a 12–gauge in his belly.”

¶ 18 One of the officers testified that he had explained the make-my-day law several times to Manyik and Adams, and he had specifically informed them that the intruder had to make an unlawful entry into a dwelling for the property owner to lawfully shoot him. Based on this and other evidence, the prosecution argued that Manyik and Adams had conspired to kill the victim and make it appear like a justified shooting.

¶ 19 The jury acquitted Manyik of conspiracy to commit first degree murder and first degree murder, but it convicted him of the lesser included offense of second degree murder. It also convicted him of aggravated robbery and tampering with physical evidence. The trial court sentenced Manyik to twenty-two years' imprisonment for murder and to concurrent prison sentences of ten years and six years for aggravated robbery and tampering with physical evidence, respectively.

II. Prosecutorial Misconduct—Improper Channeling of the Victim in Opening Statement

¶ 20 For a substantial part of his opening statement, the prosecutor assumed the identity of the victim. He began by saying, “My name is [the victim]. I was 55 years old when I was ambushed, murdered and set up by Traci Adams and Mark Manyik, the Defendant.”

¶ 21 The prosecutor then described the victim's relationship with Adams, the end of the relationship, and the events leading up to the shooting, all in the voice of the victim. Regarding the shooting, he said, “I see Mark raise a shotgun, this 12–gauge shotgun. I look at Mark. I'm scared. I say to him, ‘Mark, please don't shoot.’ I didn't stop him. He fired one single 12–gauge round directly into my belly. I fall backwards....”

¶ 22 The prosecutor went on to narrate, as the victim, Manyik's and Adams' actions after the shooting, including speaking with the 911 operator and taking the victim's cell phone. In the same way, the prosecutor described the police arriving and the victim's death:

I can hear sirens arriving.... I'm still barely alive, but not really conscious.... [The] [d]eputy eventually comes up to my near lifeless body.... He calls Flight for Life.... A few minutes later the helicopter lands and the medical staff and the police get me into the helicopter, take me to the hospital. Somewhere between that flight from the

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