People v. Montoya

• Decision Date: 27 December 1996
• Docket Number: No. 95CA0265,95CA0265
• Citation: 942 P.2d 1287
• Parties: 20 Colorado Journal 1918 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip M. MONTOYA, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1287

942 P.2d 1287

20 Colorado Journal 1918

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip M. MONTOYA, Defendant-Appellant.

No. 95CA0265.

Colorado Court of Appeals,

Div. IV.

Dec. 27, 1996.

Rehearing Denied Jan. 30, 1997.

Certiorari Denied Sept. 8, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Paul Koehler, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for Defendant-Appellant

Opinion by Judge CASEBOLT.

Defendant, Phillip Montoya, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree murder and conspiracy to commit first degree murder. We affirm.

Prosecution evidence indicated the following events occurred. Motivated by the victim's having quit defendant's street gang and formed another gang, defendant and other gang members decided to kill the victim. Because the defendant knew where the victim's bedroom was located, he agreed to go with another gang member (shooter) and assist him in shooting the victim through the bedroom window.

The shooter and defendant proceeded to the victim's window and propped up a bookcase against the house in order to gain access to the window. Standing on the bookcase, the shooter shot the victim as he lay in his bed.

After the shooting, the gang separated. Once the defendant reached another gang member's home, he recounted to the other gang member the events that had transpired after he had gone to the victim's window.

Two other members of the gang told a gang member's mother that the group had been attacked by the victim's gang and had fired a shot into that gang, hitting the victim. The next day, the mother and a gang member threw the murder weapon into a lake.

Pursuant to plea agreements, two of the gang members later testified for the prosecution.

At trial, after deliberating for over four hours, the jury informed the trial court that it had reached a verdict. Upon the jury's return, each member was polled, whereupon one of the jurors responded inconsistently. Upon investigation, the court learned that the juror in question had a severe hearing impediment, had missed a significant portion of the trial testimony, and much of what he had been able to understand from the other jurors during deliberations had come from his ability to lip read.

Over defendant's objection, the trial court applied Crim.P. 24(e), replaced the juror with an alternate, and instructed the jury to commence deliberations anew. After six hours of deliberations, the reconstituted jury found the defendant guilty of first degree murder as a complicitor, based on its finding that the defendant had aided, abetted, and advised his fellow gang member in the shooting of the victim. The jury also found the defendant guilty of conspiring to commit first degree murder.

I.

Defendant first asserts that the trial court erred in denying his challenges for cause to several jurors. We disagree.

Trial courts are afforded broad discretion in deciding whether to grant or deny a challenge for cause to a potential juror, and a decision denying such a challenge will be set aside only when the record discloses a clear abuse of that discretion. People v. Sandoval, 733 P.2d 319 (Colo.1987).

It is within the trial court's prerogative to give considerable weight to a potential juror's statement that he or she can fairly and impartially serve on the case. If the trial court is satisfied that a potential juror will render a fair and impartial verdict according to the law and to the evidence submitted at trial, that person should not be disqualified. People v. Sandoval, supra; § 16-10-103(1)(j), C.R.S. (1986 Repl.Vol. 8A); Crim.P. 24(b)(1)(X).

Here, the defendant argues that the trial court should have excused three prospective jurors based on their statements during voir dire. The three jurors stated, in effect, that they believed that for a case to come to trial there must be some substance to the charges. The defendant interprets these statements to mean that the jurors would not have correctly presumed his innocence or placed the burden of proof on the prosecution.

The trial court responded to the jurors' statements by instructing them on the presumption of innocence, specifically informing them that the prosecution alone bore the burden of proving its case. The trial court then asked each of the three jurors whether they would follow the court's instructions in coming to a verdict. Each juror responded that he or she would follow the court's instructions of law and would presume the defendant innocent until proven guilty.

The trial judge, because of the advantage of personal observation, is the only judicial officer able fully to assess the attitudes and state of mind of a potential juror in giving responses to difficult questions. People v. Sandoval, supra. With this in mind, and based on the responses of the three jurors to the trial court's inquiries, we conclude that no abuse of discretion by the trial court has been demonstrated in regard to its refusal to dismiss the jurors for cause.

II.

Defendant next maintains that, since any conspiracy had ended before certain out-of-court statements were made by his coconspirators, the trial court erred in admitting those hearsay statements. However, we need not address the issue of whether the statements were properly admitted as being made in furtherance of the conspiracy because we conclude that, even if the trial court erred in admitting the statements, such error was harmless.

A trial court's evidentiary ruling will be deemed harmless only if a reviewing court can say with fair assurance that, in light of the entire record at trial, the error did not substantially influence the verdict or impair the fairness of the trial. People v. Bowers, 801 P.2d 511 (Colo.1990).

Here, the defendant specifically objects to post-shooting statements made by the gang member's mother who testified that, shortly after the shooting, her son and other gang members told her that their gang had fired upon the victim's gang, striking the victim, after the victim's gang had attacked them. The mother also testified to statements made by a gang member about hiding the gun used to shoot the victim.

The gang member's statements to the mother did not mention the defendant and are of little probative value as to whether the defendant conspired with and aided and abetted the other gang members in the shooting of the victim. Further, the statements at issue were not of such a nature as to prejudice the jury's determination of the defendant's guilt. The crucial evidence in determining the guilt of the defendant came from the direct, in-court testimony of two gang members as to the events leading up to the shooting, as well as from the defendant's statements to those gang members about how he helped the shooter kill the victim.

Thus, even if we were to assume that the trial court improperly admitted the co-conspirator statements under CRE 801(d)(2)(E), in light of the entire record, we can say with fair assurance that the statements did not substantially influence the verdict or impair the fairness of the trial. Hence, any error was harmless. See Crim.P. 52.

III.

Defendant next contends that the trial court erred in denying his motion to sever his trial from that of his codefendant. We disagree.

A.

A defendant is entitled to severance of trial as a matter of right if there is evidence which is admissible against one but not all of the parties and if that evidence is prejudicial to the defendant against whom the evidence is not admissible. People v. Lesney, 855 P.2d 1364 (Colo.1993); § 16-7-101, C.R.S. (1986 Repl.Vol. 8A); Crim.P. 14. Otherwise, a motion for severance is addressed to the sound discretion of the trial court, and the trial court's decision will be affirmed absent a showing of an abuse of discretion and actual prejudice to the moving party. Peltz v. People, 728 P.2d 1271 (Colo.1986).

The supreme court has interpreted § 16-7-101 to mean, in the mandatory severance setting, that the trial court must determine whether the admitted evidence was so inherently prejudicial that the jury could not have limited its use to its proper purpose. People v. Gonzales, 198 Colo. 450, 601 P.2d 1366 (1979).

Here, the defendant argues that, because his guilt or innocence as a complicitor and conspirator was premised on his actions before and during the shooting of the victim, evidence concerning events occurring after that time was irrelevant and would have been inadmissible if the defendant had been tried separately from his co-defendant. As before, defendant objects to the testimony of the mother describing the efforts to dispose of the gun, as well as the co-conspirator statements admitted under CRE 801(d)(2)(E).

However, if we assume, arguendo, that the defendant is correct and that this evidence was inadmissible as to him, to be entitled to severance, he still must show that the evidence was so inherently prejudicial that the jury could not have limited its use to its proper purpose. See People v. Gonzales, supra.

While defendant claims that testimony regarding disposition of the gun and the co-conspirator statements was "extremely prejudicial" to his case, he provides no explanation as to why this was so. To the contrary, the defense strategy was to show that the defendant did not aid or abet in the shooting of the victim because he thought the gang intended only to shoot out the victim's windows. We do not perceive how testimony regarding disposition of the murder weapon--making no mention of the defendant--or the co-conspirator's statements, would prejudice this defense.

Hence, we conclude that this evidence was not so prejudicial that the jury could not have properly limited its use against the...