People v. Ned, No. 93CA1269

Docket NºNo. 93CA1269
Citation923 P.2d 271
Case DateJanuary 25, 1996
CourtCourt 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.

Page 273

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:

Page 274

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...

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23 practice notes
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • 29 Noviembre 2007
    ...resulting from the witness's display, and our review of the record discloses none, we will not disturb the conviction. See People v. Ned, 923 P.2d 271, 276-77 There is no indication in the record that the brief display of emotion exhibited by RW would mandate reversal of defendant's convict......
  • People v. Friend, Court of Appeals No. 09CA2536
    • United States
    • Colorado Court of Appeals of Colorado
    • 25 Septiembre 2014
    ...it denied defendant's motion for a mistrial after the victim's husband made emotional displays during closing arguments); People v. Ned, 923 P.2d 271, 276 (Colo.App.1996) (holding that the testimony of the victim's mother was admissible even though she began crying, thrashing about on the w......
  • State v. Lagat, No. 23337.
    • United States
    • Supreme Court of Hawai'i
    • 8 Febrero 2002
    ...indicated that outbursts of emotion by witnesses do not automatically prejudice a defendant's right to a fair trial. In People v. Ned, 923 P.2d 271 (Colo.Ct.App.), cert. denied, 923 P.2d 271 (Colo.1996), the mother of the victim was asked questions that required her to testify about the act......
  • People v. Boykins, No. 03CA2278.
    • United States
    • Colorado Court of Appeals of Colorado
    • 20 Octubre 2005
    ...court stopped this line of questioning when defendant objected, and defendant did not request a curative instruction. See People v. Ned, 923 P.2d 271 (Colo.App.1996)(trial court's failure to give limiting instruction did not amount to reversible error where defendant failed to request Final......
  • Request a trial to view additional results
23 cases
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • 29 Noviembre 2007
    ...resulting from the witness's display, and our review of the record discloses none, we will not disturb the conviction. See People v. Ned, 923 P.2d 271, 276-77 There is no indication in the record that the brief display of emotion exhibited by RW would mandate reversal of defendant's convict......
  • People v. Friend, Court of Appeals No. 09CA2536
    • United States
    • Colorado Court of Appeals of Colorado
    • 25 Septiembre 2014
    ...it denied defendant's motion for a mistrial after the victim's husband made emotional displays during closing arguments); People v. Ned, 923 P.2d 271, 276 (Colo.App.1996) (holding that the testimony of the victim's mother was admissible even though she began crying, thrashing about on the w......
  • State v. Lagat, No. 23337.
    • United States
    • Supreme Court of Hawai'i
    • 8 Febrero 2002
    ...indicated that outbursts of emotion by witnesses do not automatically prejudice a defendant's right to a fair trial. In People v. Ned, 923 P.2d 271 (Colo.Ct.App.), cert. denied, 923 P.2d 271 (Colo.1996), the mother of the victim was asked questions that required her to testify about the act......
  • People v. Boykins, No. 03CA2278.
    • United States
    • Colorado Court of Appeals of Colorado
    • 20 Octubre 2005
    ...court stopped this line of questioning when defendant objected, and defendant did not request a curative instruction. See People v. Ned, 923 P.2d 271 (Colo.App.1996)(trial court's failure to give limiting instruction did not amount to reversible error where defendant failed to request Final......
  • Request a trial to view additional results

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