People v. Ned, 93CA1269

• Citation: 923 P.2d 271
• Decision Date: 25 January 1996
• Docket Number: No. 93CA1269,93CA1269
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gabriel X. NED, a/k/a Gable X. Ned, Defendant-Appellant. . V
• Court: Court of Appeals of Colorado

Page 271

923 P.2d 271

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gabriel X. NED, a/k/a Gable X. Ned, Defendant-Appellant.

No. 93CA1269.

Colorado Court of Appeals,

Div. V.

Jan. 25, 1996.

Rehearing Denied Feb. 29, 1996.

Certiorari Denied Sept. 9, 1996.

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

David F. Vela, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Gable X. Ned, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree murder. We affirm.

According to the prosecution's evidence, in August 1992, a family dispute led to the victim and his stepbrother becoming engaged in a fight. With the acquiescence of defendant, the combatants' stepfather, the fight was permitted to continue outside the house.

While the two brothers were fighting, victim made a sudden move and hit defendant in the jaw. Defendant stepped away from the men. The stepbrother then pinned victim on the ground and had almost total control over him. At the same time, defendant moved towards the men as though he was going to break up the fight. Instead, however, defendant stabbed victim in the heart, fatally wounding him.

Defendant's testimony was that he had intended to help the victim, but the victim grabbed his legs causing him to be afraid the victim might hurt him, so he "nicked" victim in the chest with a pocket knife.

I.

Defendant first contends that the trial court erred in granting the prosecution's challenge for cause of a prospective juror. We disagree.

The trial court should sustain a challenge for cause of a potential juror if there exists a state of mind in the juror evincing enmity or bias toward the defendant or the prosecution. The test to be applied is whether it appears that the potential juror would render a fair and impartial verdict based upon the evidence presented at trial and the instructions given by the court. People v. Schmidt, 885 P.2d 312 (Colo.App.1994).

When a prospective juror is challenged on the basis of a statement that on its face depicts enmity or bias toward the defendant or the state, the challenge should be sustained unless a later examination of the juror clearly demonstrates that the juror's original statement was the result of mistake, confusion, or some other factor that will have no effect on the juror's ability to render a fair and impartial verdict. If the trial court doubts the juror's ability to be impartial under such circumstances, it should resolve the doubt by sustaining the challenge. People v. Russo, 713 P.2d 356 (Colo.1986).

A trial court is vested with broad discretion in deciding whether to grant or deny a challenge for cause of a potential juror, and its decision will be set aside only when the record discloses a clear abuse of discretion. People v. Schmidt, supra.

Here, during voir dire, a prospective juror indicated that she was concerned "about age-kind-of-related issues" and that, because defendant was elderly, she would be "sensitive" and perhaps biased in his favor. Upon further questioning by the prosecution as to whether she would be biased, the following colloquy occurred:

Juror: I'm not sure. I think it can go either way. It's hard for me. I think I try to keep my objective viewpoint, but I think it's hard also to escape. But I can't say in that issue.

Prosecutor: So you think it would be difficult to be a juror given your activities and Mr. Ned's age, is that ---

Juror: Right.

Prosecutor: Do you have a bias in favor of him at this point in terms of his age?

Juror: Yeah; yeah.

Defense counsel then questioned the prospective juror. Defendant now contends those subsequent questions rehabilitated the prospective juror. Although it is true that she initially indicated she could be fair and impartial, when the court asked her if she could be fair to both sides, she responded At this point, I would say I could be. I just --- I do still have concerns. I mean, I think--I think I would, but I would be taking in the facts and not, as you were saying, leaning in terms of one way or another, necessarily in regard to that; saying you have an extra burden. But that I would think that I would be sensitive to how we view older people, we view handicapped people, that sort of thing. And that would be something I would definitely take into consideration in this case.

After assessing this answer, the trial court found the prospective juror could not be fair and granted the prosecution's challenge for cause. Upon reviewing the record, we perceive no abuse of discretion.

II.

Defendant next contends the trial court abused its discretion in allowing testimony concerning his relationships with family members other than the victim. More specifically, defendant claims that such testimony was prejudicial and that the trial court abused its discretion in denying his motion for mistrial based on the testimony. Again, we disagree.

A mistrial is a drastic remedy and is warranted only when prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. The granting of a motion for mistrial is within the sound discretion of the trial court. People v. Evans, 886 P.2d 288 (Colo.App.1994).

A trial court can better evaluate any adverse effect that improper testimony might have upon a jury than can a reviewing court. Thus, absent an abuse of discretion, the trial court's denial of a motion for mistrial will not be disturbed on review. People v. Price, 903 P.2d 1190 (Colo.App.1995).

The first two instances of alleged prejudicial testimony occurred during the direct examinations of victim's two stepsisters. In the first instance, the following colloquy occurred:

Prosecutor: What did you do after [victim] got home, basically briefly, what did you do between then and, say, 10 o'clock?

Witness: Just sat around with the kids. And, you know, we watched TV, and my mom had cooked dinner. And me and my father and my sister ... was having a semi-argument with my dad about things that had been going on for years, and--

Defendant objected to this testimony on the grounds that the prosecutor was evoking forbidden testimony regarding earlier problems between defendant and the other children. However, the trial court found no prejudice and stated that it would not instruct the jury to disregard the testimony.

In the second instance, another stepsister testified as follows:

Prosecutor: What happened later that evening, after everyone was home?

Witness: When I came in I was telling [my sister] how my dad started an argument.

Defense counsel again objected on the grounds of relevancy. The trial court instructed the prosecutor to rephrase the question and the following colloquy occurred:

Q: Aside from anything that happened about the driving, what happened in relationship that night, did your family have dinner or what type of things happened then?

A: Yeah. Before we ate dinner, [my sister] and I, my father we were having a discussion as to how he would act over the years--

Again, defense counsel objected, asserting that the prosecution was eliciting forbidden testimony. The trial court instructed the prosecution to lead the witness through this portion of the testimony. Defendant did not request a limiting instruction.

At the conclusion of that witness' testimony, defendant moved for a mistrial, asserting that the prosecution had improperly elicited the testimony. Treating the issue as one of prosecutorial misconduct, the court denied the motion for mistrial, finding that no such misconduct had occurred. In so ruling, the court stated that it disagreed with defense counsel's perception of the situation; that nothing about the prosecutor's questions had elicited the answers about which defense counsel complained; and that the information defense counsel was concerned about did not get into the record and was not heard by the jury.

A trial court must determine whether alleged prosecutorial misconduct probably influenced the jury's result or affected the fairness of the proceedings. Harris v. People, 888 P.2d 259 (Colo.1995). Allegedly improper questions must be considered in the context of the testimony as a whole and in light of the evidence. See People v. Roy, 723 P.2d 1345 (Colo.1986).

Here, we agree with the trial court that there was no prosecutorial misconduct and we reject defendant's contention that the testimony was irrelevant and highly prejudicial. The testimony did not refer to any specific acts committed by defendant against a particular family member, it contained no discussion of violence, and it made no reference to bad feelings between defendant and his family. Further, defendant has failed to show any prejudice resulting from the testimony. Speculation of prejudice is insufficient to warrant reversal of a trial court's denial of a motion for mistrial. See People v. Conley, 804 P.2d 240 (Colo.App.1990).

Nor are we persuaded by defendant's contention that the prosecutor elicited these comments. Rather, they were made in response to open-ended questions and, once defense counsel objected to the testimony, the prosecutor ended that line of questioning.

Thus, given the speculative nature of any prejudice to defendant, the fact that the prosecution did not intentionally educe the remarks, and the peripheral nature of the comments, we conclude that the trial court's refusal to grant a mistrial was not an abuse of discretion. See People v. Price, supra.

III.

Defendant next contends that comments made during the stepbrother's redirect examination were unduly prejudicial and that the trial court abused its discretion in failing to grant a mistrial based on that testimony. We are not persuaded.

On cross-examination, victim's...