People v. Martinez

• Decision Date: 12 October 2000
• Docket Number: No. 99CA1325.,99CA1325.
• Citation: 24 P.3d 629
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Danny Nieto MARTINEZ, Jr., Defendant-Appellant.
• Court: Colorado Court of Appeals

24 P.3d 629

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Danny Nieto MARTINEZ, Jr., Defendant-Appellant.

No. 99CA1325.

Colorado Court of Appeals, Div. III.

October 12, 2000.

Certiorari Denied June 11, 2001.¹

Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Susan L. Foreman, Boulder, Colorado, for Defendant-Appellant. Opinion by Judge ROY.

Defendant, Danny Nieto Martinez, Jr., appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree felony murder, after-deliberation first degree murder, second degree kidnapping with a special finding that it was committed on a victim of sexual assault who suffered serious bodily injury, first degree sexual assault with a special finding that he was physically aided or abetted by one or more persons and that the victim suffered serious bodily injury, sexual assault on a child, and first degree assault. We affirm.

The defendant was a member and the leader of a street gang known as the "Duece 7 Crenshaw Westside Mafia Gangsters," a sect of the Denver Bloods. Some junior gang members picked up the victim, a fourteen-year-old girl, waiting at a bus stop, and took her to a residence frequented by the gang.

There, the victim was, over the next one and a half to two hours, repeatedly raped vaginally, orally, and anally by most, if not all, of the gang members present in the house. During this time, the victim cried, begged to be released or taken to the hospital, promised not to tell anyone what had happened, and asked for God's help. The victim was then dressed in a pair of jeans, and the defendant placed a hooded sweatshirt on her backwards to obstruct her vision and handcuffed her.

The gang members then discussed, in the presence of the victim, how they should dispose of her. Having determined that she should be killed, they discussed who would kill her and how. The victim begged for her life. The defendant and another gang member placed the victim in the back seat of a car and, while defendant restrained her and she begged for her life, another gang member stabbed her a number of times and strangled her until she was unconscious.

They then drove to Clear Creek Canyon where they dragged her from the car and one of the gang members held her down while another stabbed her repeatedly in the neck, apparently inflicting the death wounds.

On the morning after, the defendant returned to the residence and removed the victim's clothing, jewelry, and the bloody bedding. He gave the victim's shoes to a cousin. A few days later, he returned and disposed of the mattress.

The prosecution sought the death penalty. However, after a sentencing hearing, the defendant was sentenced to life in prison without the benefit of parole for first degree murder and a total of 160 years on the remaining convictions to be served consecutively. This appeal followed.

I.

Defendant first argues that the trial court erred in instructing the jurors that the prosecution had requested the death penalty, and that their role in this case had nothing to do with the penalty so they should not consider it, and then permitting the prosecution to "death-qualify" the jury. Defendant contends that these practices are contrary to Colorado law because they permit the questioning of prospective jurors on an issue they will be forbidden to consider. Defendant further argues that these practices also violate his constitutional right to a fair and impartial jury because a "death-qualified" jury is more likely to favor the prosecution. We disagree.

At the outset, we do not agree that this jury was "death-qualified." Indeed, the trial court specifically stated that the jury would not be "death-qualified." A "death-qualified" jury is qualified to decide a case involving the death penalty because the jurors have no absolute ideological bias against capital punishment. Black's Law Dictionary 861 (7th ed.1999); see also State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980). Because we have concluded that this jury was not "death-qualified," we render no opinion here as to whether the prosecution is entitled to such a jury when the death penalty has been requested.

We also reject the defendant's contention that the trial court erred in advising the prospective jurors, at the outset, that the prosecution was seeking the death penalty. He objects to the timing of that instruction. The defendant suggests that the jury should be so advised after voir dire but prior to the presentation of evidence.

As the supreme court observed in People v. District Court, 190 Colo. 342, 345, 546 P.2d 1268, 1270 (1976): "[w]e would be dealing in fantasy if we were to subscribe to the notion that a jury is not going to know that, upon conviction of first-degree murder, the defendant may be sentenced to death." (emphasis in original). In our view, it would be a flight of fantasy of at least equal proportions to subscribe to the notion that, in light of the controversy surrounding the death penalty and the public attention given cases in which it is requested, that most, if not all, of the prospective jurors were not aware that the death penalty had been requested in this case by the time they arrived in the courtroom.

A defendant in a criminal proceeding has a fundamental constitutional right to a trial by fair and impartial jurors, see People v. Abbott, 690 P.2d 1263 (Colo.1984)

; Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971), and the purpose of voir dire examination is to enable counsel to determine whether any prospective jurors are possessed of beliefs that would cause them to be biased in such a manner as to prevent the defendant from obtaining a fair and impartial trial. People v. Collins, 730 P.2d 293 (Colo.1986).

Though the entitlement may not rise to a constitutional level, the prosecution also is entitled to a fair and impartial jury. See United States v. Wilson, 571 F.Supp. 1422 (S.D.N.Y.1983)

; State v. Montano, 136 Ariz. 605, 667 P.2d 1320 (1983); State v. Lacy, 851 S.W.2d 623 (Mo.App.1993).

The test for determining whether a prospective juror should be disqualified for bias is whether that person will render a fair and impartial verdict according to the law and the evidence presented at trial. See § 16-10-103(1)(j), C.R.S.2000; see also People v. Fuller, 791 P.2d 702 (Colo.1990)

.

The trial court, without objection, instructed the prospective jurors at the beginning of voir dire as follows:

In Colorado a person convicted of first degree murder may be sentenced to either life imprisonment or the death penalty. The prosecution will seek the death penalty if [the defendant] is convicted of murder in the first degree. The penalty decision under Colorado law is made by a panel of three judges. The jury does not have any part in deciding what the penalty should be. And you should not consider this aspect of the case for any purpose.

After making preliminary comments, instructing the jury, and asking some preliminary questions, the trial court handed out a jury questionnaire asked whether the prospective jurors had "any moral, religious, political or other beliefs that may effect (sic) your service as a juror?" If the juror responded in the affirmative, he or she was asked to explain.

Five prospective jurors answered this question in the affirmative, and were interviewed separately in camera. Four voiced strong objections to the death penalty and indicated that their objections would significantly impact their ability to follow the court's instructions. These jurors were removed for cause at the request of the prosecution. The fifth prospective juror stated that she could be fair and impartial and was not removed for cause.

The panel was not asked direct, unprompted, and open-ended questions concerning their attitudes on the death penalty and whether, or how, that attitude might impact their service. Only those prospective jurors who expressed concern about the death penalty in response to the juror questionnaire were questioned further, and that questioning was outside the presence of the remaining prospective jurors. Therefore, those prospective jurors who held views opposing the death penalty, but concluded on their own that their views would not prevent them from following the trial court's instructions and to render a fair and impartial verdict, were never questioned on the subject. The only jurors excused for cause because of their attitudes...