People v. Montgomery, No. 85CA1270

Docket NºNo. 85CA1270
Citation743 P.2d 439
Case DateJuly 02, 1987
CourtCourt of Appeals of Colorado

Page 439

743 P.2d 439
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Zannie E. MONTGOMERY, Defendant-Appellant.
No. 85CA1270.
Colorado Court of Appeals,
Div. I.
July 2, 1987.
Rehearing Denied Aug. 20, 1987.

Page 440

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David R. Little, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Janet Fullmer Youtz, Lynda H. Knowles, Deputy State Public Defenders, Denver, for defendant-appellant.

TURSI, Judge.

The defendant, Zannie E. Montgomery, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of sexual assault and one count of crime of violence. He asserts the trial court erred: 1) by denying his challenge for cause to a potential juror; 2) by refusing to allow him to recross-examine the prosecution's investigator; 3) by failing to remove the victim from the courtroom when she began to cry during defense counsel's closing argument; and 4) by failing to instruct the jury sua sponte on the affirmative defense of alibi. We affirm.

The victim testified that while she was walking home, she accepted a ride from the defendant, a man she did not know. He turned into an apartment building parking lot, locked the car doors, pulled a knife, and told her she was going to "make love" or he would kill her, and then assaulted her.

The defendant testified that he was home at the time of the alleged sexual assault. His testimony was corroborated by four other witnesses who testified that he was at home that evening. The defendant also testified he knew the victim; that they had had sexual intercourse about six times before the date of the asserted assault; that when the victim told him she was pregnant, he denied he was the father and she told him he was going to "pay for it."

Page 441

I

The defendant first asserts the trial court abused its discretion by denying his challenge for cause to a potential juror. We disagree.

During voir dire, the potential juror indicated to the trial court that he was self-employed, and that it was a very busy time for his business. He also stated that he would be worried about his business and would be distracted during the three-day trial, and might try to reach a verdict quickly. In response to further questioning, he expressed a fear that he would not devote his full attention to the case.

The trial court refused to excuse the potential juror for cause, determining that the juror was trying to avoid his duty to serve since it might cause him financial loss. The defendant removed him by exercising a peremptory challenge. The defendant exhausted his peremptory challenges.

The defendant contends the potential juror's statements show he had a state of mind that would make him unable to render a fair and impartial verdict based upon the evidence and in accordance with the instructions of law.

It is within the trial court's discretion to reject a challenge for cause to a potential juror. Absent an abuse of that discretion, its decision will not be disturbed on appeal. People v. Russo, 713 P.2d 356 (Colo.1986).

Here, the potential juror gave no response which would indicate enmity or bias to...

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9 practice notes
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...P.2d 760, 769 (Colo.1981) (emotional displays by victim's husband during closing argument did not require mistrial); People v. Montgomery, 743 P.2d 439, 441-42 (Colo.App.1987) (victim's crying during defense counsel's closing argument did not require B. Sister's Presence A division of this ......
  • Hunt v. State, No. 53
    • United States
    • Court of Appeals of Maryland
    • September 1, 1987
    ...within the sound discretion of the trial judge, and only rarely will the judge's ruling be disturbed. See generally People v. Montgomery, 743 P.2d 439 (Col.App.1987) (upholding refusal to grant mistrial when victim cried during closing argument); Hallman v. United States, 410 A.2d 215 (D.C.......
  • State v. Boone, No. 910046-CA
    • United States
    • Court of Appeals of Utah
    • October 18, 1991
    ...a mistrial is necessary to prevent an injustice from resulting because of an extraneous event in the courtroom." People v. Montgomery, 743 P.2d 439, 442 (Colo.App.1987). 9 Other jurisdictions have emphasized that a new trial may be unnecessary if the trial judge has properly instructed the ......
  • Ortuno v. State, No. 0706
    • United States
    • Court of Special Appeals of Maryland
    • April 18, 2016
    ...an outburst by victim's stepmother during the State's closing argument), cert. denied, 562 U.S. 899 (2010); People v. Montgomery, 743 P.2d 439, 442 (Col. App. 1987) (upholding refusal to grant mistrial when victim cried during closing argument) (cited in Hunt, 312 Md. at 502); Messer v. Sta......
  • Request a trial to view additional results
9 cases
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...P.2d 760, 769 (Colo.1981) (emotional displays by victim's husband during closing argument did not require mistrial); People v. Montgomery, 743 P.2d 439, 441-42 (Colo.App.1987) (victim's crying during defense counsel's closing argument did not require B. Sister's Presence A division of this ......
  • Hunt v. State, No. 53
    • United States
    • Court of Appeals of Maryland
    • September 1, 1987
    ...within the sound discretion of the trial judge, and only rarely will the judge's ruling be disturbed. See generally People v. Montgomery, 743 P.2d 439 (Col.App.1987) (upholding refusal to grant mistrial when victim cried during closing argument); Hallman v. United States, 410 A.2d 215 (D.C.......
  • State v. Boone, No. 910046-CA
    • United States
    • Court of Appeals of Utah
    • October 18, 1991
    ...a mistrial is necessary to prevent an injustice from resulting because of an extraneous event in the courtroom." People v. Montgomery, 743 P.2d 439, 442 (Colo.App.1987). 9 Other jurisdictions have emphasized that a new trial may be unnecessary if the trial judge has properly instructed the ......
  • Ortuno v. State, No. 0706
    • United States
    • Court of Special Appeals of Maryland
    • April 18, 2016
    ...an outburst by victim's stepmother during the State's closing argument), cert. denied, 562 U.S. 899 (2010); People v. Montgomery, 743 P.2d 439, 442 (Col. App. 1987) (upholding refusal to grant mistrial when victim cried during closing argument) (cited in Hunt, 312 Md. at 502); Messer v. Sta......
  • Request a trial to view additional results

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