People v. Marquez

Decision Date17 December 1984
Docket NumberNo. 82SA307,82SA307
Citation692 P.2d 1089
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wilfred Delano MARQUEZ, Defendant-Appellant.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Montano & Encinas, P.C., Alfred Duane Montano, Denver, for defendant-appellant.

ROVIRA, Justice:

Wilfred Delano Marquez, the defendant, appeals his conviction of two counts of aggravated robbery, 1 second-degree assault, 2 and crime of violence. 3 The jury also found the defendant was an habitual criminal. 4 We affirm.

I.

The charges arose out of a robbery of the Palmer House Motel in Colorado Springs. The prosecution's evidence established that at approximately 2:30 a.m. on July 6, 1980, two armed men entered the lobby of the motel. One carried an automatic pistol, the other a 12-inch knife. Both men attempted to conceal their identities with bandanas and stocking caps.

The gunman, later identified as the defendant, forced James Lewis, the motel's security guard, who was also a sergeant with the El Paso County Sheriff's Office, to go to the front desk and subsequently into a rear office. Lewis was then forced to lie on the floor. With his pistol to Lewis' head, the gunman removed Lewis' wallet. The gunman then began an unsuccessful search of Lewis for weapons.

The other robber forced Myrtle Butler, the motel clerk, to go behind the front desk to the cash drawer, which contained approximately $35 and some traveler's checks, and then to the safe. When Butler could not open the safe, she was taken to the rear office and thrown on top of Lewis, thereby preventing the gunman from further searching Lewis. This enabled Lewis to conceal his gun, a .38 caliber revolver.

The knife-wielding robber then raised his knife which Lewis interpreted as preparation for an attack. At that point, Lewis drew his revolver and fired. The knife-wielding robber collapsed on the floor. From the corridor outside the office, the gunman began firing into the office, using the wall as a shield. Two shots struck Butler--one in the left arm, the other in the left leg. Lewis returned fire, and one of his shots struck the gunman's arm. The gunman then stepped into the doorway and aimed a "death shot" at Lewis. However, Lewis fired first, hitting the gunman in the chest. The gunman immediately fled the scene.

A short time later, the defendant appeared at Saint Francis Hospital in Colorado Springs with gunshot wounds to his chest and arm. No bullet remained in his arm, but the bullet to the chest had lodged near his shoulder blade. Although defendant had signs of shock, he was conscious in the emergency room where a physician, Dr. Blum, removed the bullet with a simple procedure. Shortly thereafter, the two police officers who witnessed the removal obtained the bullet from the physician. Tests by firearm experts established that the bullet removed from the defendant's chest was fired from the revolver used by Lewis during the robbery.

At the conclusion of the prosecution's case, the defendant attempted to present an alibi defense. However, the trial court refused to submit the defendant's tendered alibi instruction to the jury on the basis that the defendant had not established such a defense. The defendant was then found guilty of the crimes referred to above, whereupon the trial court proceeded with the habitual criminal phase of trial.

Count five of the information alleged that the defendant had previously been convicted of the federal offense of bail jumping. The defendant claimed this conviction could not be used in the habitual criminal proceeding because his guilty plea was not tendered in accordance with Fed.R.Crim.P. 11. Defendant's objection was overruled, and the jury subsequently found him to be an habitual criminal.

II.

The defendant first contends that the jury selection procedure used in El Paso County failed to meet the requirements of Rule 7(b)(2) of the Colorado Rules of Jury Selection and Service and that such failure should in and of itself be sufficient to require reversal. Rule 7(b)(2) states:

No later than September 1, 1972, and of each year thereafter, each chief judge shall determine which supplemental lists are available in and applicable to each of the counties in his district. The chief judge shall direct the jury commissioner in each county in his district to acquire these lists no later than October 1, except as otherwise provided in subsection (4) of this section (b), so that all master lists may be integrated prior to March 1 of the following year. 5 (emphasis supplied).

Subsection (b)(4) provides:

For those counties participating in the centralized automated jury selection system under the supervision of the state court administrator, the deadlines and procedures for acquiring and transmitting supplemental lists shall be prescribed by the state court administrator.

In the proceeding which followed the defendant's motion challenging the jury array, he called an El Paso County jury commissioner as a witness. She testified that since the county began participating in the central automated jury selection system under the supervision of the state court administrator, it was her understanding that the chief judge had made no determination of supplemental list availability, nor had the jury commissioners acquired such lists. She also testified that the central automated system used the city directory and voter registration and driver licenses lists. On the basis of this testimony, the defendant's motion to quash the information pursuant to Crim.P. 24(c) was denied.

We find the trial court did not err in denying the motion because the record demonstrates that the defendant failed to establish that the requirements of Rule 7 had not been met. He made no showing that El Paso County's participation in the system did not comply with "the deadlines and procedures for acquiring and transmitting supplemental lists ... [as] prescribed by the state court administrator." There was also no evidence that El Paso County was denied access to, or that the state court administrator did not have access to supplemental lists. 6

III.

The defendant next contends that because the trial court erred in refusing to grant his challenge for cause to a potential juror, he was needlessly forced to exercise one of his peremptory challenges. Section 16-10-103(1)(j), 8 C.R.S. (1978), requires the trial court to sustain a challenge for cause where there exists "a state of mind in the juror evincing enmity or bias toward the defendant." Under defense counsel's skilled voir dire, the juror stated that she thought both sides of the case must be set forth before she could make a determination. Thus, it is suggested that such a disposition would have biased the defendant by nullifying the presumption of innocence.

The defendant discounts the voir dire conducted by the trial court which he claims "did not clarify or shed any light upon the juror's insistence that both sides of the case must be set forth." We disagree. Section 16-10-103(1)(j) also states that no juror shall be disqualified "if the court is satisfied, from the examination of the juror or from other evidence, that he [the juror] will render an impartial verdict according to the law and the evidence submitted to the jury at trial...." The court's voir dire of the potential juror, Mrs. Wilcox, disclosed no enmity or bias toward the defendant. See e.g., People v. Meyer, 628 P.2d 103 (Colo.1981) (prospective juror patently demonstrated "a fixed prejudgment about the merits of the case and an unwillingness to accept and apply those principles that form the bedrock of a fair trial"); Morgan v. People, 624 P.2d 1331 (Colo.1981) (juror doubted his ability and willingness to apply the law following explanations of the general principles of law regarding presumption of innocence and right to remain silent). Here, the most that can be said is that Wilcox manifested a misunderstanding of the role of the prosecution and the defense during a criminal trial. After its extensive voir dire, the trial court was satisfied the juror could render an impartial verdict. Moreover, Wilcox expressed a willingness to apply the proper principles of law. We find no "manifest abuse of discretion" by the trial judge in denying the challenge for cause which would warrant disturbing his decision on review. See, e.g., People v. Abbott, 690 P.2d 1263 (Colo.1984); People v. Taggart, 621 P.2d 1375 (Colo.1981); People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

IV.

Defendant next argues that the admission into evidence of the bullet removed from his body and the testimony of attending medical personnel violated his statutory physician-patient privilege. 7 Because the privilege is statutorily created, it must be strictly construed. Community Hospital Association v. District Court, 194 Colo. 98, 100, 570 P.2d 243, 244 (1977). The privilege covers "any information acquired in attending the patient, which was necessary to enable him [the physician] to prescribe or act for the patient." § 13-90-107(1)(d), 6 C.R.S. (1973 & 1983 Supp.). Information encompasses more than communications or statements made by the patient but includes observations resulting from examination. Colorado Fuel & Iron Co. v. Cummings, 8 Colo.App. 541, 46 P. 875 (1896) (privileged information includes that acquired by examination). Yet, the information acquired must be necessary for the physician to act or prescribe for the patient for it to be privileged. Hanlon v. Woodhouse, 113 Colo. 504, 160 P.2d 998 (1945) (blood alcohol test results not necessary for treatment were not privileged); Cook v. People, 60 Colo. 263, 153 P. 214 (1915) (patient's refusal to allow physician to remove bullet or to tell him how wound was received was information not necessary for treatment).

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