People v. Moore

• Decision Date: 05 February 2009
• Docket Number: No. 05CA1592.,05CA1592.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Antonio Ennis MOORE, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

226 P.3d 1076

The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Antonio Ennis MOORE, Defendant-Appellant and Cross-Appellee.

No. 05CA1592.

Colorado Court of Appeals, Div. III.

February 5, 2009.

Rehearing Denied April 23, 2009.

Certiorari Dismissed June 17, 2009.

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado; Carol Chambers, District Attorney, Andrew Cooper, Senior Deputy District Attorney, Centennial, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Douglas K. Wilson, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge LOEB.

Defendant, Antonio Ennis Moore, appeals the judgment of conviction entered upon a jury verdict finding him guilty of theft by receiving-$15,000 or more, a class 3 felony. Moore also appeals the trial court's judgment adjudicating him a habitual criminal. The People cross-appeal the trial court's ruling dismissing a count of second degree burglary-dwelling and a count of criminal mischief as a sanction for the prosecution's discovery violation. We vacate the judgment of conviction and sentence for theft by receiving-$15,000 or more, and remand the case for entry of judgment of conviction and sentencing for theft by receiving—more than $500 but less than $15,000, and for correction of the mittimus. In all other respects, we affirm the judgment and sentence. With respect to the cross-appeal, we disapprove the trial court's order. Defendant's Direct Appeal

I. Background, Facts, and Procedural History

On July 15, 2004, G.F. came home and discovered the house he shared with his wife, S.F., had been burglarized. It appeared someone had entered the house by breaking a basement window. G.F. found the couple's safe, which was normally located in the upstairs bedroom closet, in the downstairs living room. The safe door and its contents were missing, with the exception of some jewelry remaining on the floor.

The next day, Moore's parole officer arrived at his apartment for a scheduled meeting. During the meeting, the parole officer thought Moore was acting nervous, and she asked him to sit down. Moore sat down on an end table next to the couch. The parole officer asked him to move to the couch. When Moore did so, the parole officer noticed a bag under the end table. The bag contained what appeared to the parole officer to be coins and small boxes. The bag also contained another bag with the words "Stolen from [G.F.]" written on it. Although Moore told the parole officer it was his coin and jewelry collection, she was suspicious and called the police, who then took Moore into custody.

Four days later, the parole officer looked up G.F. in the phonebook. When she called the listing for that name, G.F. told her he had recently been the victim of a burglary. The Littleton Police Department confirmed that information.

At trial, G.F. testified that, when he was a teenager, he marked a bag containing his coin and marble collection with the words "Stolen from [G.F.]." He testified that he thought writing "Stolen from [G.F.]" on the bag would prevent his brother from taking it.

After the police investigation of the burglary, the victims made a detailed list of stolen items, which included their estimate of each item's value. After the list was made, the couple went to the police station to identify items recovered from Moore's apartment. Both victims testified at trial that some of the items recovered by the police did not belong to them. The couple also recorded which items on their list were recovered by the police.

Moore went to trial on counts of theft— $15,000 or more (a class 3 felony); second degree burglary—dwelling (a class 3 felony); criminal mischief—$500 to $15,000 (a class 4 felony); theft by receiving—$15,000 or more (a class 3 felony); and four habitual criminal counts.

During the trial, the second degree burglary and criminal mischief counts were dismissed by the trial court as a sanction for a discovery violation by the prosecution. As a result, the court only submitted the theft and the theft by receiving counts to the jury. The court also gave the jury a special interrogatory, directing it to find whether the value of the items stolen was $500 to $14,999 or $15,000 or more, if they found him guilty of either theft or theft by receiving. The jury found Moore not guilty of theft, and found him guilty of theft by receiving— $15,000 or more.

Moore was then tried by the court on the habitual criminal counts. The trial court found Moore guilty on all four habitual criminal counts and sentenced him to forty-eight years in the Department of Corrections (DOC). This appeal and cross-appeal followed.

II. Jury Selection

Moore contends the trial court reversibly erred by denying his motion for mistrial because the court lacked statutory authority to summon a second jury panel after the original jury was sworn. The second panel was necessary to fill the alternate position and to replace two jurors who were excused for cause before trial began. We discern no reversible error.

A. Proceedings in the Trial Court

Prior to voir dire, the trial court advised the parties that its policy in criminal cases was to "seat 12 jurors plus one alternate." However, after the jury was sworn, the trial court discovered that only twelve jurors, but not the alternate, had actually been sworn. In light of this oversight, the parties and the trial court agreed another juror would be selected through voir dire of six additional potential jurors. Defense counsel agreed to the process but reserved the right to object: "That process sounds fine to me; I don't object to it at this time. I'd like to reserve that issue in case we [wind] up with six venire men/women—I don't know—I'd like to reserve that issue until I further review their questionnaires."

Before impaneling the new venire, the trial court received a note from one of the sworn jurors stating that, because she was a student in Fort Collins, she would have difficulty getting to court. After discussing the issue with counsel, the trial court decided to seat two of the six people in the new venire, one to fill the alternate spot and one to fill the student juror's spot, assuming a final decision was made to excuse her. Defense counsel requested a modification in the procedure: "[G]iven five of the six potential jurors are crime victims of home [break-ins] and burglaries, I respectfully request the Court for a larger pool of potential jurors."

Consequently, the trial court checked on whether another six potential jurors were available, for a total of twelve. During further questioning by the trial court, the student juror stated she voted in Larimer County and lived in Durango, and, accordingly, she was excused with no objection from the parties.

The trial court then gave Moore and his counsel a chance to confer about whether to proceed with a six-person venire or wait for the extra six potential jurors. Before Moore and his counsel decided how to proceed, the trial court announced six more potential jurors were available, for a total of twelve.

Before voir dire began of the new twelve-person venire, the trial court received a note from another sworn juror, which stated: "I am concerned my recognizability, ... local t.v. sports anchor[,] could lead to my judgment being affected due to concerns the accused might want retaliation if convicted. And would know who I am and where to find me." On questioning, this juror stated he brought the issue to the court's attention because he felt he would not be able to apply the law to the facts as directed by the judge. He also expressed concern about complying with the instruction to the jury to disregard media reports because keeping up on such information was part of his job. Defense counsel requested that the trial court excuse this juror for cause. The prosecution took no position, and the trial court then excused the juror for cause. Consequently, the court determined that three jurors would need to be selected from the new twelve-person venire.

Based on these developments, Moore's counsel then moved for a mistrial, arguing that it would be difficult to "pick three jurors out of 12 people, two peremptories, 20 minutes a piece, and protect Mr. Moore's right to a fair and impartial jury." The trial court denied the motion, ruling, "[I do] not find manifest necessity to declare a mistrial. We will protect Mr. Moore's right." In that regard, the court further decided to allow each side three peremptory challenges. The trial court and the parties proceeded to voir dire, and, ultimately, three new jurors were selected and sworn.

B. Standard of Review

A trial court has broad discretion to grant or deny a motion for mistrial. People v. Russom, 107 P.3d 986, 992 (Colo.App. 2004). A reviewing court will not disturb a trial court's decision absent gross abuse of discretion and prejudice to the defendant. Id. Moreover, a mistrial is a drastic remedy that is warranted only where there is prejudice to the defendant that cannot be remedied by other means. Id. A trial court necessarily abuses its discretion when it bases its ruling on an erroneous view of the law. People v. Pagan, 165 P.3d 724, 729 (Colo.App. 2006).

Further, a trial court has substantial discretion to manage the flow of the trial. Russom, 107 P.3d at 993. However, a trial court may abuse its discretion when its method of selecting a juror results in prejudice to the defendant. Id.; see Carrillo v. People, 974 P.2d 478, 490-93 (Colo.1999)(determining that mid-deliberation replacement of a juror raises a presumption of prejudice that can be overcome by procedural precautions taken by the trial court); People v. Tippett, 733 P.2d 1183, 1196 (Colo.1987)(concluding that, although the trial court erred in selecting alternate jurors at the end of the trial, the error was not...