People v. O'NEAL, 99CA0435.

• Decision Date: 21 December 2000
• Docket Number: No. 99CA0435.,99CA0435.
• Citation: 32 P.3d 533
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Demetris O'NEAL, Defendant-Appellant.
• Court: Colorado Court of Appeals

32 P.3d 533

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Demetris O'NEAL, Defendant-Appellant.

No. 99CA0435.

Colorado Court of Appeals, Div. V.

December 21, 2000.

Certiorari Denied October 1, 2001.

Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

C. Keith Pope, Boulder, CO, for Defendant-Appellant.

Opinion by Judge NIETO.

Defendant, Demetris O'Neal, appeals a judgment of conviction entered upon a jury verdict finding him guilty of reckless manslaughter. Defendant also appeals his sentence. We affirm.

Defendant and three other men brutally assaulted a taxi cab driver after a minor collision in a parking lot. The victim was punched and kicked, and the assailants stomped on his head. He was rendered unconscious by the beating, and was then placed in the trunk of his taxi cab. Defendant and the others then left the scene. When the victim was discovered in the trunk, he was dead.

Defendant and the other men were eventually apprehended. Defendant was tried with one co-defendant. He was charged with first degree murder and convicted of the lesser included offense of reckless manslaughter. This appeal followed.

I.

Defendant first contends that the trial court erred by denying defendant's challenges of four jurors for cause. We do not agree.

Section 16-10-103, C.R.S.2000, and Crim. P. 24 provide for challenges for cause to prospective jurors. A defendant in a criminal case has a fundamental right to trial by jurors who are fair and impartial. People v. Abbott, 690 P.2d 1263 (Colo.1984).

The standard of review of a trial court's ruling on a challenge for cause is whether the court abused its discretion. Deference is given to the trial court's assessment of the prospective juror because of its perspective in evaluating the demeanor and body language of the juror. Carrillo v. People, 974 P.2d 478 (Colo.1999). We will overturn a court's ruling on a challenge for cause only if the record presents no basis to support it. People v. Harlan, 8 P.3d 448 (Colo. 2000).

A.

Defendant challenged a juror whose mother was the sister of the grandmother of one of the persons charged in this incident, but who was not a co-defendant in this trial. On appeal, defendant asserts that his challenge should have been granted because this juror was biased.

Defendant argued that the juror's familial relationship would bias her against any attempt by defendant to shift blame to her distant relative. The trial court found that the juror had not displayed any predisposition or prejudice and therefore denied the challenge for cause. The record supports the trial court's ruling. The juror stated the relationship would not affect her. When asked directly about evidence implicating her relative, the juror stated she would not view such evidence more critically. While assurances of good faith cannot compensate for factors which inherently produce prejudice, People v. Rogers, 690 P.2d 886 (Colo.App.1984), the record here shows that the relationship at issue was not one that inherently produced prejudice. The relationship was indirect and distant, and the record also reveals that the juror had not seen this relative for many years.

B.

Defendant asserts that another juror's answer to voir dire questions demonstrated that he would not follow the law concerning the burden of proof and that the trial court therefore erred in denying a challenge for cause.

However, the record does not support defendant's assertion. When asked by the prosecutor if he could return a verdict of guilty if the charge was proven beyond a reasonable doubt, the juror responded, "I guess depends on which side proves the other, gives me the better proof (sic)." In this context, while not revealing a full understanding of the burden of proof, the answer shows the juror was willing to listen to defendant's evidence. Because there is nothing in the voir dire that demonstrates that this juror would refuse to follow the court's instructions, we defer to the trial court's assessment of this juror.

C.

Defendant challenged another juror because that juror's sister was murdered twelve years earlier. The trial court denied the challenge, finding that this fact would not interfere with the juror's ability to consider this case.

The record supports the trial court's finding. This juror articulately and adamantly stated that his sister's death would not influence him. He said, "justice was served [in his sister's case] and I'm fine with that. So, there is no reason I should punish these two individuals for something that happened twelve years ago."

D.

Defendant also challenged a juror who was a school psychologist. Based on his work with students, the juror expressed concern for the victims of crime. The trial court denied this challenge, finding that the juror expressed a heightened concern for victims of crime, but did not have a predisposition in this case. The juror's answers demonstrated his own concern over his neutrality in this case, but he consistently stated he would do his best to fulfill his role as a juror. The juror never said that he could not or would not act impartially.

As to each of the challenged jurors, the trial court was in the best position to judge the credibility of their responses. We see no abuse of the trial court's discretion here because as to each juror the findings are supported by the record.

Accordingly, we perceive no error in the trial court's denial of defendant's challenges for cause.

II.

Defendant next contends that the trial court committed reversible error by admitting evidence of defendant's statements made after his arrest. He asserts that his statements were the product of an unlawful arrest and must be suppressed. We are not persuaded.

Defendant was a passenger in a vehicle that was stopped for driving in the wrong direction on a one-way street. The officer noticed that defendant, who was apparently asleep, had a cut lip and bloodstains on his pants. The officer asked the driver the name of his passenger. The driver stated the first name but mumbled the last name, which the officer could not understand. The officer then requested that the driver awaken defendant, and the officer asked defendant his name. Defendant gave a name different from that given by the driver. Defendant was subsequently arrested for giving false information to a police officer and for outstanding warrants.

The Fourth Amendment provides that people shall "be secure in their persons... against unreasonable searches and seizures." U.S. Const. amend. IV. Police-citizen contacts fall into three categories: consensual encounters, investigative stops, and full arrests. People v. Archuleta, 980 P.2d 509 (Colo.1999). A full arrest must be based on probable cause to believe that the person arrested has committed, is committing, or is about to commit a crime. People v. Holmberg, 992 P.2d 705 (Colo.App.1999). An investigative stop can be justified by reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

A consensual encounter is not a seizure and does not implicate Fourth Amendment protections.

During a consensual interview, a police officer seeks the voluntary cooperation of an individual by asking non-coercive questions. A citizen is free to leave at any time during such an encounter or to ignore the police officer's question.

People v. Paynter, 955 P.2d 68, 72 (Colo. 1998) (citation omitted). The test to determine if an encounter is consensual is whether a reasonable person under the circumstances would believe he or she was free to leave or to disregard the police officer's request for information. People v. Thomas, 839 P.2d 1174 (Colo.1992).

In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Supreme Court noted that in some situations the "free to leave" test is not capable of literal application. In Bostick, the defendant was a passenger on a bus when the police asked to inspect his ticket and identification. The defendant argued that a reasonable bus passenger would not feel free to leave under the circumstances, because there was nowhere else to go on the bus, and because he risked being stranded if he left the bus that was about to depart. The Supreme Court concluded that under these circumstances the defendant would not have felt free to leave the bus even if the police had not been present. Therefore, the court explained that the constraint on his movement said nothing about whether the police conduct was coercive. "Accordingly, the `free to leave' analysis on which [the defendant] relies is inapplicable. In such a situation the appropriate inquiry is whether a reasonable person would feel free to decline the officer's request or otherwise terminate the encounter." Florida v. Bostick, supra, 501 U.S. at 436, 111 S.Ct. at 2387, 115 L.Ed.2d at 400.

The touchstone of the Fourth Amendment is reasonableness measured in objective terms. There are no bright-line rules. Therefore, rather than rely on a single factor, the totality of the surrounding circumstances must be considered in order to determine whether the officer sought voluntary cooperation or exercised force or authority to effect a stop. This reasonable person test presupposes an innocent person and relies on an objective determination based on the totality of the surrounding circumstances. People v. Paynter, supra.

Here, the police officer observed a traffic violation and used his overhead flashing lights to stop the car in which defendant was a passenger. The record does not show that the officer used forceful or demanding language; he did not display a weapon or use any other show of force or authority beyond stopping the car by using his overhead flashing lights. He merely asked defendant his name.

"It is well established that an officer's asking for identification alone does not amount to a seizure under the Fourth...