People v. Muniz

• Decision Date: 21 February 2008
• Docket Number: No. 03CA0268.,03CA0268.
• Citation: 190 P.3d 774
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael MUNIZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

190 P.3d 774

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael MUNIZ, Defendant-Appellant.

No. 03CA0268.

Colorado Court of Appeals, Div. V.

February 21, 2008.

As Modified on Denial of Rehearing April 3, 2008.

Certiorari Denied August 18, 2008.

John W. Suthers, Attorney General, Jennifer A. Berman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge J. JONES.

Defendant, Michael Muniz, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of second degree murder and two counts of a crime of violence. We reverse and remand for a new trial.

I. Background

On July 2, 1996, K.B. (the victim) returned home after visiting a Target store. Shortly thereafter, her neighbors, a husband and wife and their three daughters, heard yelling and screaming coming from across the street. On their way to investigate the screams, the neighbors observed a man running from the area of the screams to his "boxy" gray or black car, which two of them later identified as a Chevrolet Celebrity. The neighbors went into the victim's open garage and found her suffering from stab wounds that proved fatal.

The police collected fingerprints and hair from the scene, as well as blood from underneath one of the victim's fingernails. The coroner determined that the victim died from the stab wound in her upper right chest, which was made by a knife with a blade at least four and one-half inches long.

The wife gave police a description of the man she had seen running away from the area. She described him as white, about six feet one inch or six feet two inches tall, weighing approximately 180 pounds, with medium length dark hair, bangs, and a mustache. He had no tattoos, and was between thirty-five and forty years old. Her husband described the man as white with a dark complexion, about six feet tall, weighing about 170 pounds, with no tattoos, and in his late twenties. The oldest daughter (age sixteen) described the man as Asian or Hispanic about six feet tall, weighing about 185 pounds, with dark hair, and in his mid-thirties. She did not notice any tattoos. The two younger daughters described the man as Hispanic, about six feet tall, with no noticeable tattoos. All the witnesses said the man they saw leaving the scene was wearing a white T-shirt and blue jeans.

Based on the wife's description and report, the police created a composite drawing of the suspect, which she rated as an eight or nine out of ten in terms of accuracy. The police investigated numerous leads developed as a result of the composite drawing and other information, and investigated numerous suspects. Defendant was not identified as a suspect, and none of the leads led the police to file charges against anyone.

On July 15, 2001, over five years after the murder, the police received a telephone call from an unidentified person, who stated:

Oh. Hey, I have an unsolved murder for you. . . . Well, this happened about five years ago. . . . July 2nd, 1996. . . . Okay, I killed, I stabbed some lady, okay? . . . Yes, on 46th and Independence. . . . Yes, I followed her from Target store, from Lakeside Mall. . . . I followed her over there, and I just killed, you know, I stabbed her. . . . I just want to let you know that, that I'm on the loose again. So if you don't believe me, look at my record. . . . Just let you know, I'm back.

All the information the caller provided regarding the crime had been published in newspaper articles shortly after the murder.

The police traced the telephone call to defendant's motel room, where he was staying with his wife and daughter. After the police arrived at his motel room, he voluntarily accompanied an officer to the station for questioning, during which he denied making the phone call to the police or having owned a gray, four-door car or any other car.

Subsequently, defendant's wife, sister, and mother identified the voice of the anonymous caller as belonging to defendant. Defendant voluntarily returned to the police station three days after the initial questioning and admitted that he owned a green 1984 Buick at the time of the murder. The police obtained vehicle registration records showing that defendant owned a 1984 Chevrolet Celebrity at the time of the murder, and that he sold it a few months later. Defendant voluntarily spoke to various detectives on several subsequent occasions.

Defendant is a Hispanic male, and is five feet seven inches tall. He weighs 170 pounds and has noticeable tattoos on his hand, wrist, bicep, face, and neck, all of which pre-date the murder. The fingerprints, hair, and blood taken from the crime scene did not match his fingerprints, hair, or DNA.

When a police officer showed three of the witnesses (the wife and two of her daughters) a photographic array including defendant, none of them identified defendant as the person they saw leaving the vicinity of the murder. Several months later, the wife, husband, and one of their daughters viewed a physical line-up, which included defendant. Again, none of the witnesses identified defendant as the man they had seen running from the vicinity of the murder, though the daughter stated defendant (whom she previously had seen in the photographic line-up) most closely resembled the man she had seen on the day of the murder.

The People charged defendant with one count of first degree murder and two counts of a crime of violence. The People subsequently reduced the first degree murder charge to a charge of second degree murder.

Defendant's first trial ended in a mistrial because the jury was unable to reach a unanimous verdict. Defendant was retried in November 2002, and the jury found him guilty of second degree murder and the two violent crime charges. The court sentenced him to forty-eight years in the custody of the Department of Corrections.

II. Double Jeopardy

Defendant contends that the district court's declaration of a mistrial in his first trial did not result from manifest necessity, and retrying him violated his federal and state constitutional rights to be free from double jeopardy. We disagree.

"The double jeopardy clauses of the United States and Colorado Constitutions provide that no person shall be twice put in jeopardy for the same offense." Ortiz v. Dist. Court, 626 P.2d 642, 645 (Colo.1981); see U.S. Const. amends. V & XIV; Colo. Const. art. II, § 18. However, when a criminal trial is properly terminated by a declaration of a mistrial based on manifest necessity, double jeopardy does not bar retrial of the accused. Ortiz, 626 P.2d at 646; People v. Rivers, 70 P.3d 531, 534-35 (Colo.App.2002) (citing People v. Schwartz, 678 P.2d 1000 (Colo.1984)).

Manifest necessity exists "if the jury is deadlocked and cannot reach a verdict." Schwartz, 678 P.2d at 1011. In determining whether the jury cannot reach a verdict, a court should consider the following factors: "(1) the jury's collective opinion that it cannot agree; (2) the length of the trial; (3) the complexity of the issues; (4) the length of time the jury has deliberated; (5) whether the defendant has made timely objections to a mistrial; and (6) the effects of exhaustion or coercion on the jury." Id.

A district court has broad discretion in deciding whether to declare a mistrial, and we will not disturb its decision absent a gross abuse of that discretion and prejudice to the defendant. Id.; People v. Mersman, 148 P.3d 199, 203 (Colo.App.2006).

Here, the jurors deliberated over two days for approximately thirteen hours and sent three separate notes to the court indicating that they were split and could not reach a decision. After the second note, the court issued a modified Allen instruction, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), to the jurors encouraging them to consult with each other and deliberate with a view toward reaching a verdict. The jurors remained divided, however, stating in their third note: "None of us believe further deliberations will convince us to change our opinion. We are firmly entrenched in our beliefs and are still split." Given the jurors' collective opinion regarding their inability to reach a verdict and the length of time they deliberated, we discern no abuse of the district court's discretion. See Rivers, 70 P.3d at 535.

III. Exclusion of Evidence of Alternate Suspects

Defendant next contends the district court erred in granting the prosecution's motion in limine to preclude him from presenting evidence that two other individuals, E.F. and K.H., could have killed the victim. We disagree as to K.H., but because we agree with defendant that the district court erred in precluding him from offering evidence that E.F. could have committed the murder, we reverse defendant's convictions and remand for a new trial.

A. Proceedings on the Prosecution's Motion in Limine

The prosecution's motion in limine to preclude evidence of alternate suspects pertained to numerous persons, including E.F. and K.H., whom the police had investigated in connection with the murder but determined not to be "viable suspects." The prosecution argued that evidence of these alternate suspects was not admissible because there was no evidence that any of them had any "direct connection" with the murder. In response, defendant filed a notice of his intent to offer evidence of eleven alternate suspects (including E.F. and K.H.), two of whom were not identified in the prosecution's motion.

Following a hearing, the district court granted the prosecution's motion. The court concluded that as to all the alternate suspects at issue, either there was no showing of a direct connection with the murder in this case or there was no showing that any particular prior offense committed by any of the alternate suspects was committed in such a...