People v. Moya, 92CA0686

• Decision Date: 22 September 1994
• Docket Number: No. 92CA0686,92CA0686
• Citation: 899 P.2d 212
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph Daniel MOYA, III, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 212

899 P.2d 212

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph Daniel MOYA, III, Defendant-Appellant.

No. 92CA0686.

Colorado Court of Appeals,

Div. II.

Sept. 22, 1994.

As Modified on Denial of Rehearing

Jan. 19, 1995.

Certiorari Denied June 26, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wendy J. Ritz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Janet F. Youtz, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge MARQUEZ.

Defendant, Joseph Daniel Moya, III, appeals the judgment of conviction entered upon jury verdicts finding him guilty of attempted aggravated robbery and first degree felony murder. He also appeals the trial court's imposition of a life sentence with the possibility of parole after 40 years. We affirm.

According to testimony at trial, on December 5, 1990, defendant and a number of companions, most of whom were members, or associated with members, of the "Bloods" street gang, spent the day observing a murder trial of a friend. Thereafter, they went to an apartment where they drank, discussed committing robberies, and obtained a gun and ammunition.

Later, several, including defendant, drove to a gas station that they considered robbing, then attempted to rob a woman in a mall, and eventually entered the driveway of an apartment complex where a young man was walking down the sidewalk. Defendant and a co-defendant got out of the car. Subsequently, the young man was shot four times, and the group fled the scene. There was testimony to support a theory that the shooting was either gang related or committed in the course of a robbery. Testimony of the co-defendant and others at trial indicated that defendant had shot the young man.

I.

Defendant first contends that the trial court's failure to grant defendant's challenges for cause to two jurors was error. We disagree.

To ensure a defendant's fundamental right to a trial by jurors who are fair and impartial, the trial court must exclude prejudiced or biased persons from the jury. The test to be applied is whether the person would be able to set aside any bias or preconceived notion and render an impartial verdict according to the law and the evidence presented at trial. People v. Drake, 748 P.2d 1237 (Colo.1988); see also § 16-10-103(1)(j), C.R.S. (1986 Repl.Vol. 8A).

A decision denying a challenge for cause will be set aside only if the record discloses a clear abuse of discretion by the trial court. People v. Drake, supra.

A.

One prospective juror stated that she had been a victim of first degree sexual assault and that she did not "think our judicial system works." She stated: "With everything I went through ... what they got was not fair."

The following exchange then took place between the prosecutor and the prospective juror:

[Prosecutor]: I guess the bottom line is that you're going to be required, if you sit on this jury panel, to follow the law and to make a--an unemotional decision as to what the facts are.

[Juror]: Correct.

[Prosecutor]: Can you do that, say you are sitting down, and, like I was talking to some of the other folks, and you look and you say: Boy, this doesn't look like it should be first degree murder. Do you think you will follow the instructions anyway or would you pitch it?

[Juror]: Yes, I believe I can follow the instructions because it's not the same kind of a case.

[Prosecutor]: Okay. Is there any reason that you could think of because of your having been the victim of a sex assault that would prevent you from being fair and impartial to both sides?

[Juror]: No.

After further questioning by defense counsel, the trial court found that the prospective juror's previous experiences did not create bias or prejudice as to this case and denied defendant's challenge for cause. A challenge for cause may be for bias of the prospective juror that is either actual or implied. People v. Macrander, 828 P.2d 234 (Colo.1992). An implied bias is a bias attributable in law to a prospective juror regardless of actual partiality. People v. Rhodus, 870 P.2d 470 (Colo.1994).

As quoted above, the record reveals no actual bias that would require granting a challenge for cause. Here, in denying defendant's challenge for cause, the court further stated:

I think the bottom line with reference to [the prospective juror] is that she was obviously emotionally involved with being the victim of a--what she described as a first degree sexual assault....

She did, however, state in this case, [defendant's] case was not affecting her personally, that she could set her own experience aside, the fact that she had a difficult experience with the judicial system, be it the criminal judicial system or something more greatly expanded than that. The Court does not believe it creates a bias or prejudice or an inability on the part of this juror to be fair and impartial.

Upon consideration of the record as a whole, we conclude that the trial court acted within its discretion in declining to infer that the juror's past experiences would prevent her from being fair and impartial.

Defendant, nevertheless, argues that the prospective juror should have been excused for the implied bias resulting from her past experiences. We disagree.

Here, because the grounds alleged for excluding the juror were not within the statutory criteria for implied bias under § 16-10-103(1), C.R.S. (1986 Repl. Vol. 8A), the trial court was not required to exclude the juror. See People v. Rhodus, supra; Crim.P. 24(b)(1).

B.

Similarly, we reject defendant's assertion that the trial court erred in failing to find an implied bias with respect to a second prospective juror.

This second prospective juror had formerly been employed in the sheriff's office for five years, and her husband currently worked as a deputy in the jail where defendant was being held. However, there was no indication that her husband was privy to any information which could influence her.

Even government employees who have contacts with a prosecutor or other law enforcement personnel have not been considered presumptively biased. People v. Rhodus, supra. Under these circumstances, we find no abuse of discretion in the denial of the challenge for cause to this juror. See People v. Rhodus, supra; People v. Sandoval, 733 P.2d 319 (Colo.1987); People v. Vigil, 718 P.2d 496 (Colo.1986); cf. Crim.P. 24(b)(1)(XII) (present employees of law enforcement agency subject to challenge for cause).

II.

Defendant next asserts that the trial court's erroneous admission of immaterial, highly prejudicial evidence, including photographs of the victim and testimony concerning gang affiliations, denied him a fair trial. We disagree.

Evidence is relevant if it has a tendency to render a fact of consequence more or less probable than it would be without such evidence. CRE 401; People v. Spoto, 795 P.2d 1314 (Colo.1990).

Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. CRE 403; People v. Spoto, supra.

Trial courts have considerable discretion concerning the admissibility of evidence and the determination of its relevancy, probative value, and prejudicial impact. To show an abuse of discretion, an appellant must establish that, under the circumstances, the trial court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33 (Colo.1993).

A.

Defendant objected to the introduction of photographs of the victim taken at the autopsy. Defendant argues that the extent of injury was not disputed and that the photographs were cumulative to testimony regarding gunshot wounds to the victim and had no probative value. We disagree.

The trial court admitted six of the seven photographs offered, concluding that they would assist the pathologist in explaining the victim's injuries and that their probative value was not outweighed by unfair prejudice. Defendant objects to four of those admitted.

However, upon review, we would not describe the photographs as "horrifying and graphic," and we agree with the trial court's conclusions.

Under these circumstances, we cannot say the trial court abused its discretion. See People v. Viduya, 703 P.2d 1281 (Colo.1985); People v. Nhan Dao Van, 681 P.2d 932 (Colo.1984); People v. Guffie, 749 P.2d 976 (Colo.App.1987).

B.

1.

Defendant also moved to limit the introduction of evidence concerning gang affiliations.

Defendant's motion in limine stated in pertinent part:

1. There is evidence that the defendant belonged to a gang, BMG Bloods. Evidence of gang connection is not relevant to any issue at trial. Colorado Rule of Evidence 401. If admitted, the prejudicial impact of this evidence will greatly outweigh the probative value. Colorado Rules of Evidence 403.

The motion did not refer to gang affiliations other than that of defendant. Both at the hearing on the motion in limine and in his appellate brief, defendant, while conceding that some evidence of gang affiliations is relevant, argued that such evidence concerning himself and others should have been "sanitized and limited."

The trial court denied defendant's motion to limit such evidence, stating: "[A]s it relates to paragraph one ... I can't sanitize away the fact that the People's position and their case and much of the evidence would indicate that the sole motive in this homicide was because one person wore blue and another person was a member of a gang ... that didn't like people who wore blue...."

Ultimately, at trial, the prosecution essentially abandoned gang affiliation as a motive and argued that defendant killed the victim in the course of an attempted robbery. However, to refute the robbery charges, defense counsel elicited testimony concerning gang affiliations. Defendant's theory of the case instruction stated that defendant "asked ...