People v. Martinez

• Decision Date: 31 August 2000
• Docket Number: No. 98CA1459.,98CA1459.
• Citation: 18 P.3d 831
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Joe MARTINEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

18 P.3d 831

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Joe MARTINEZ, Defendant-Appellant.

No. 98CA1459.

Colorado Court of Appeals, Div. I.

August 31, 2000.

Certiorari Denied February 26, 2001.¹

Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Christopher H. Gehring, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge METZGER.

Defendant, Daniel Joe Martinez, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault and from the court's adjudication finding him guilty of three habitual criminal counts. We affirm.

Responding to a 911 call, police and paramedics found the victim lying on the ground and crying, with blood on her face and hands, and cuts and swelling on her face. She told a police agent and a paramedic that her boyfriend had hit her and identified him to police as defendant.

Taken to a hospital, the victim told the emergency room physician she had been "punched" three to four times, and the physician determined her nose and another facial bone had been broken, and her left sinus was full of blood.

In the meantime, based on bystanders' descriptions of the alleged perpetrator, the police apprehended defendant and arrested him. At the police station, defendant volunteered: "[N]ext time, I'll kill her.... [She] got what she deserved."

Thereafter, defendant was indicted by the grand jury for second degree assault. Later, the trial court granted the prosecution's motion to add three habitual criminal counts.

The victim did not appear for trial. Nevertheless, after hearing testimony from the police, the paramedic, the emergency room physician, and the bystanders, the jury found defendant guilty of second degree assault. After a bench trial, the court found defendant guilty of the habitual criminal counts and imposed a 24-year sentence to the Department of Corrections.

I.

Defendant first contends the trial court's denial of his challenge for cause to a prospective juror constituted reversible error. We conclude that no error occurred.

Section 16-10-103(1)(j), C.R.S.1999, requires a trial court to grant a challenge for cause if it determines that a prospective juror has a state of mind that is biased toward either party.

The standard of review is whether the trial court abused its discretion. This standard gives deference to the trial court's assessment of the credibility of a prospective juror's responses, recognizes the trial court's unique role and perspective in evaluating the demeanor and body language of live witnesses, and serves to discourage an appellate court from second-guessing those judgments based on a cold record. Carrillo v. People, 974 P.2d 478 (Colo.1999).

Here, the prospective juror initially stated that, if the complaining witness did not appear at trial, she would presume it would be because the witness was afraid of defendant.

However, on further inquiry, the prospective juror said she understood and agreed with the propositions of the presumption of innocence and the state's burden to prove the case beyond a reasonable doubt. The court asked whether she would allow the victim's non-appearance to influence her decision in any way, and the prospective juror said, "No."

The prospective juror also stated she would "follow the court's instructions on the law" and that the absence of the complaining witness would not be proof of defendant's guilt.

Thus, because the prospective juror's answers did not demonstrate bias and because she agreed with and pledged to abide by the pertinent law, we find no abuse of discretion in denying defendant's challenge for cause.

II.

Defendant contends the trial court erred in (1) admitting, as excited utterances under CRE 803(2), hearsay statements made by the victim to an investigating police agent; and (2) admitting, as statements made for purposes of medical diagnosis or treatment under CRE 803(4), hearsay statements made by the victim to a paramedic. Defendant also asserts the admission of these statements at trial violated his Colorado and federal rights to confrontation and to a fair trial. We disagree.

A.

Evidence meeting the criteria of CRE 803(2), the "excited utterance" exception to the hearsay rule, is admissible even though the declarant is available as a witness. An excited utterance is: "A statement relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition." CRE 803(2).

The requirements for admissibility under CRE 803(2) are: (1) the event must be sufficiently startling to render normal reflective thought processes of the observer inoperative; (2) the statement must be a spontaneous reaction to the occurrence; and (3) direct or circumstantial evidence must exist to allow the jury to infer that the declarant had the opportunity to observe the startling event. People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Green, 884 P.2d 339 (Colo. App.1994).

If the evidence supports the trial court's ruling, we will not disturb it. Canape v. Peterson, 878 P.2d 83 (Colo.App.1994). The trial court is in the best position to consider the effect of the startling event on the declarant; thus, it is afforded wide discretion in determining admissibility under the excited utterance exception. People in Interest of O.E.P., 654 P.2d 312 (Colo.1982); People v. Bolton, 859 P.2d 311 (Colo.App. 1993).

Here, after a hearing, the trial court determined the assault had been sufficiently startling to render the victim's normal reflective thought processes inoperative. That determination is supported by the police agent's description of the victim as being "extremely distressed, she couldn't stay in one position [and] she was alternating between rocking back and forward moaning, that she appeared to be in a lot of pain," and as being unable to engage in conversation.

The trial court also found "that at the hospital the victim—and this was within 15 or 20 minutes after the victim was removed from the scene—was still in pain. She was still writhing, she was still very emotional, and upset. She was clearly still under stress and excitement caused by this assault." The record supports this determination.

Contrary to defendant's assertions, the fact that the victim's statements were made in response to questions does not preclude them from being excited utterances. That circumstance is not dispositive of admissibility. People v. Franklin, 683 P.2d 775 (Colo.1984).

The third requirement, that there must be sufficient evidence to allow an inference that the declarant had the opportunity to observe the startling event, is also satisfied here. The victim's injuries are direct evidence that an assault—clearly a "startling event"—occurred.

The totality of the circumstances, including the severity of the victim's injuries, her agitated emotional state, and the brief time between the injury and the statements supports the trial court's determination that the statements were admissible under CRE 803(2). See People in Interest of O.E.P., supra.

B.

Defendant also asserts the statements the victim made to the paramedic should not have been admitted. Again, we disagree.

CRE 803(4), the medical diagnosis exception to the hearsay rule, includes: "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." The rationale for this rule is that such statements are presumptively reliable because of a patient's belief that the effectiveness of the treatment he or she receives may depend upon the accuracy of the information provided. People v. Galloway, 726 P.2d 249 (Colo.App.1986); see also W.C.L. v. People, 685 P.2d 176 (Colo. 1984)

.

The paramedic testified he had elicited the statements from the victim to assist in his medical diagnosis and treatment of her injuries. He said: "It's important to base our treatment on [how she was injured] ... and administer care and come up with a diagnosis for what actually happened."

The victim's statements were made in response to standard questions designed to elicit facts necessary for medical diagnosis and treatment. Additionally, all circumstances show that the victim's motive in making the statements was to obtain treatment. This was sufficient. See People v. Stiles, 692 P.2d 1124 (Colo.App.1984)

.

Further, defendant failed to object at trial to the evidence naming him as the perpetrator, and that evidence was cumulative of the testimony of two other witnesses. Thus, defendant's argument must fail. See People v. Perez, 972 P.2d 1072 (Colo.App.1998)

.

C.

Finally, defendant contends the trial court's admission of the victim's statements violated his Colorado and federal constitutional rights to confrontation and to a fair trial and, thus, constituted reversible error. We reject this contention.

With respect to the right to confront and cross-examine witnesses, our supreme court, in People v. Dement, supra,

adopted the rationale of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Dement and Roberts, a case-by-case analysis is required in which the court must: (1) determine that the prosecution has established the unavailability of the declarant "in the constitutional sense" by producing evidence that good faith and reasonable efforts to produce the witness have been unsuccessful; and (2) ensure that the evidence ultimately admitted is limited to that which bears sufficient "indicia of reliability" to augment accuracy in the fact-finding process.

The trial court found the prosecution had satisfied its burden of proof of establishing that the victim could not be located and,...