People v. Martinez, 07CA0087.

Decision Date03 September 2009
Docket NumberNo. 07CA0087.,07CA0087.
Citation224 P.3d 1026
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arthur L. MARTINEZ, Defendant-Appellant.
CourtColorado Court of Appeals

John W. Suthers, Attorney General, John J. Fuerst III, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.*

Defendant, Arthur L. Martinez, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree assault and conspiracy to commit second degree assault. We affirm.

I. Background

In mid-September 2002, Dominick Fernandez met S.M. at a bar where she worked. He flirted with her while she tended bar, but when he asked for her phone number, she gave him the phone number of the victim, her boyfriend.

On September 23, Fernandez visited the bar with defendant. The two men sat at the bar and Fernandez again flirted with S.M. The victim was also there and S.M. pointed him out to Fernandez. According to the prosecution's evidence, Fernandez offered S.M. $1000 to "let him beat up" the victim. S.M. responded by telling Fernandez that the victim had a black belt in martial arts. She then went to the victim's table, and told him what Fernandez had said. The victim ignored the comment.

At closing time, defendant and Fernandez left the bar and got into their car. The victim left shortly afterwards with his friend. Defendant and Fernandez saw them leaving, stopped the car, and walked toward them.

There were conflicting accounts of what occurred next. Defendant testified that (1) the victim and his friend made threatening gestures; (2) defendant hit the victim once with his fist, the victim went down, and defendant stepped over him; (3) the victim's friend punched defendant and those two fought; and (4) defendant saw Fernandez "hammering away" at the victim.

According to the prosecution's evidence, defendant had a flashlight in his hand as he and Fernandez approached the victim and his friend. The victim's friend testified that he threw the first punch at Fernandez and then heard the sound of the flashlight hitting the victim's head. He further testified that he saw defendant hit the victim with the flashlight two more times while the victim was on the ground and unconscious, and that defendant only stopped when the friend intervened. According to the friend, one of the assailants told him, "You better move your bitch friend before we run him over." S.M.'s cousin also worked at the bar and testified that defendant waved the flashlight and said, "Where are you at now, pussy?" as he and Fernandez drove away.

The victim's orbital bone and jaw were fractured, he lost several teeth, and he was unable to see for two months after the attack. Part of his ear was torn off and had to be reattached.

Both defendant and Fernandez were charged with felonies arising from the assault, but Fernandez reportedly fled and was unavailable for trial.

II. Court's Statements Regarding Self-Defense

Defendant first contends the trial court erred by making statements in the jury's presence about the law of self-defense. Relying on Sheftel v. People, 111 Colo. 349, 141 P.2d 1018 (1943), and Crim. P. 30, he contends the trial court's comments impermissibly shifted the burden of proof to him, prejudiced his right to a fair trial, and "reflected an unequivocal belief there was testimony supporting the view that [defendant] was the initial aggressor." We disagree.

Because defendant did not object to the court's comment, we review for plain error. See People v. Hennion, 923 P.2d 256, 259 (Colo.App.1995). Plain error is error that so undermines the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Harris v. People, 888 P.2d 259, 267 (Colo. 1995); Hennion, 923 P.2d at 259.

A trial court has wide discretion in conducting a trial, but the judge "must exercise restraint over his or her conduct and statements to maintain an impartial forum." People v. Coria, 937 P.2d 386, 391 (Colo. 1997).

Nevertheless, casual remarks by the trial court while passing on objections to testimony do not constitute reversible error unless they reflect adversely upon the defendant or upon the issue of his or her guilt or innocence. People v. Corbett, 199 Colo. 490, 496, 611 P.2d 965, 969 (1980).

Crim. P. 30 governs jury instructions and provides, as relevant here, that "[b]efore argument the court shall read its instructions to the jury, but shall not comment upon the evidence."

With respect to a trial court's comments, questions, and demeanor, more than mere speculation concerning the possibility of prejudice must be demonstrated to warrant a reversal. The record must clearly establish bias, and the test is whether the trial judge's conduct so departed from the required impartiality as to deny the defendant a fair trial. Coria, 937 P.2d at 391; People v. Rodriguez, 209 P.3d 1151, 1162 (Colo.App. 2008) (cert. granted June 22, 2009).

Thus, in People v. Martinez, 652 P.2d 174, 178 (Colo.App.1981), a division of this court concluded that the trial court's remark describing the prosecution's anticipated rebuttal evidence as being "of significance" did not warrant reversal. The division stated:

A trial judge must remain free of all taint of bias and partiality, and should not indicate to the jury any personal opinion that certain testimony is worthy or unworthy of belief. The trial court's comment here was ambiguous respecting the evidence to come. Considering the context of the statement and the repeated references to the [subject of the rebuttal evidence] by defense witnesses, we conclude that the comment, though less circumspect than it might have been, did not impart any personal opinion of the trial court to the jury respecting the testimony to come.

Martinez, 652 P.2d at 178 (citations omitted).

However, in Sheftel, the court concluded the trial court made several improper comments on the evidence, which resulted in unfair prejudice to the defendant. 111 Colo. at 352-53, 141 P.2d at 1020-21. There, the defendant maintained that, although he purchased stolen goods—new granulated ingot aluminum—he was under the impression the aluminum was scrap metal. Id. at 351-52, 141 P.2d at 1020-21. The trial court contradicted defendant's evidence by stating that the metal at issue was not scrap metal and that certain evidence presented by the defendant was irrelevant. Id. at 352-54, 141 P.2d at 1020-21. The court insinuated that the defense knew it was irrelevant, and added that a proper question asked by defense counsel during the examination of a witness was "dressed up." Id. at 353-54, 141 P.2d at 1021. The trial court also suggested that the question was unimportant, and that "there was something sham about [the] defense." Id. at 354, 141 P.2d at 1021.

The supreme court concluded the trial court's comments were unfairly prejudicial and reversed the defendant's conviction for buying and receiving stolen goods. Id. at 352, 141 P.2d at 1020; see People v. Garcia, 186 Colo. 167, 171-72, 526 P.2d 292, 294 (1974) (stating that in Sheftel, "the remarks of the trial judge clearly invaded the factfinding role of the jury").

In this case, the trial court's statements occurred during the following part of the prosecutor's closing argument:

[Prosecutor]: And then, ladies and gentlemen, there's the evidence that, unlike what the Defendant said, which is that they just pulled out of a parking space and they came around the corner. They saw an opportunity and they took it when they saw ... [the victim] and [his friend] come out of that bar that evening.

What happened? They made a U-turn. And you can see it on that video. They didn't back out of the parking lot and happen to drive by. They made a U-turn and drove around for the confrontation.

Self-defense which is an affirmative defense to both of these? I don't think so. Ladies and gentlemen, right there it is. What could they have done? They could have left. They had the perfect opportunity if [defendant] was so scared and he was very nervous about this, about the fact that ... [the victim] had a black belt. And he told you he was really nervous about that. How could he have redeemed that? He could have left.

[Defense counsel]: Judge, I'm going to object. This is improper argument. It misstates the law of self-defense. The Defendant has no duty to retreat. I object to this argument.

[Court]: I think it's in line with the instruction on the affirmative defense. If you'll note, we have some testimony that [defendant] was the initial aggressor. And I think if you'll look at that instruction, it is arguable.

But you will get an opportunity to ... counter that.... And it's not to say that the Court's finding that that's the case. I'm only finding that there's some testimony in that regard.

(Emphasis added.)

Thus, here, the trial court was responding to defendant's objection to the prosecutor's closing argument by finding there was "some evidence" defendant was the initial aggressor. Its ruling was on a matter of law, it did not invade the fact-finding province of the jury, and the court immediately instructed the jurors that they were to decide the facts. See Garcia, 186 Colo. at 171-72, 526 P.2d at 294 (concluding the trial court's statement in the presence of the jury that it would instruct the jury on first degree murder was not an impermissible and prejudicial comment).

We therefore conclude the trial court's comment did not violate Crim. P. 30 and did not constitute error, much less plain error.

III. Jury Instruction on Duty to Retreat

Defendant next contends the trial court's instruction on self defense did not adequately inform the jury that he had no duty to retreat from the encounter with the victim. We disagree.

It is the trial court's duty to instruct...

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