People v. Pernell

• Decision Date: 20 November 2014
• Docket Number: Court of Appeals No. 12CA0510
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Christopher Alexander PERNELL, Defendant–Appellant.
• Court: Colorado Court of Appeals

414 P.3d 1

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Christopher Alexander PERNELL, Defendant–Appellant.

Court of Appeals No. 12CA0510

Colorado Court of Appeals, Div. II.

Announced November 20, 2014

John W. Suthers, Attorney General, Emmy A. Langley, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE DAILEY

¶ 1 Defendant, Christopher Alexander Pernell, appeals the judgments of conviction entered on jury verdicts finding him guilty of violation of a restraining order, first degree burglary, menacing (two counts), second degree kidnapping, sexual assault, and commission of a violent crime (three counts). We affirm.

I. Background

¶ 2 In violation of a restraining order, defendant went to his ex-wife's home one evening while she and her boyfriend were inside. According to the ex-wife and boyfriend,

• when the ex-wife unlocked the front door, defendant pushed it open, knocking her to the floor;

• defendant removed a gun from a bag he was carrying, held it to the boyfriend's temple, and said "bam" or "bang";

• defendant ordered the couple to sit at the dining room table, where, while acting "agitated" and "jittery," he questioned the boyfriend about his relationship with the ex-wife; and,

• defendant eventually calmed down and agreed to let the boyfriend leave the house.

¶ 3 According to the ex-wife,

• defendant ordered her into the bedroom at gunpoint, put the gun on the dresser, had her remove her clothes, pushed her down on the bed, and had sexual intercourse with her over her objection;

• when defendant got off her, she took the gun and ran, naked, to the front door, where she was caught by defendant; and,

• defendant took the gun, pointed it at her head, and left after she promised not to call the police.

¶ 4 The next morning, after spending the rest of the night at her boyfriend's house and driving back to her own house, the ex-wife reported the incident to the police.

¶ 5 At trial, the prosecution introduced, in addition to the testimony of the ex-wife and the boyfriend, a police recording and transcript of a phone conversation between defendant and the ex-wife the day after the incident. After the ex-wife stated that she was afraid of defendant because "[he] pointed a gun at [her], [he threatened to kill her]" and "made [her] have sex with [him]," defendant responded, "I know, I know. That's the reason I got rid of [the gun] and I, I promise you that my word that that is done." When the ex-wife further said that defendant "raped" her, despite her begging him not to "do it," he stated, "Um, I, I'm sorry. I wasn't in my right frame of mind."

¶ 6 The prosecution also introduced evidence of defendant's prior acts toward his ex-wife:

• He accused her of cheating on him and forced his hands down her pants during a Christmas dinner with their children;

• He came to her house, questioned her about having a relationship with another man, and followed her to a meeting with her friend at Starbucks;

• He sent her a sexually suggestive e-mail that prompted her to get the restraining order, and;

• He came to her house on a second occasion, asked her where she was the previous night, and accused her of leaving their children alone to go see another man.

¶ 7 Defendant did not testify on his own behalf or present any evidence. His attorney argued that, although defendant went to the ex-wife's home, he did not bring a gun and he had consensual sex with his ex-wife. Counsel asserted that, afterwards, she fabricated the incident with help from the boyfriend to keep him away from defendant's and his ex-wife's two children. To support this argument, counsel pointed to the fact that the boyfriend never contacted police, and that the ex-wife had waited until the next morning to report the assault. Counsel argued that she attempted to "make the story look more believable" by changing from her skirt into pants before making the report, which she did because "[w]hen you report rape, it would be better to wear pants than a skirt."

¶ 8 Additionally, defendant's attorney attacked the victim's credibility by arguing that the ex-wife had looked down rather than at the jury for the majority of her testimony and that both she and her boyfriend had given "evasive" testimony.

¶ 9 The jury convicted defendant as charged and the trial court sentenced him to a controlling term of fifty-eight years to life imprisonment in the custody of the Department of Corrections.

II. Challenge for Cause

¶ 10 Defendant contends that the trial court erred in granting the prosecution's challenge for cause to prospective Juror H. We disagree.

¶ 11 Section 16–10–103(1)(j), C.R.S.2014, and Crim. P. 24(b)(1)(X) require disqualification of a juror if his or her state of mind manifests a bias for or against either side, unless the court is satisfied that the juror will render an impartial verdict based solely upon the evidence and instructions of the court. See Morrison v. People, 19 P.3d 668, 672 (Colo.2000) ; People v. Shreck, 107 P.3d 1048, 1057 (Colo.App.2004).

¶ 12 We give great deference to the trial court's determination of a challenge for cause because such decisions turn on an assessment of the potential juror's credibility, demeanor, and sincerity in explaining his or her state of mind. Because the trial court is in a better position to evaluate these factors than a reviewing court, we will overturn a trial court's decision concerning a challenge for cause only upon an affirmative showing by the defendant that the court abused its discretion. People v. Wilson, 2014 COA 114, ¶ 10, 356 P.3d 956.

¶ 13 A trial court abuses its discretion in this context only if there is no evidence in the record to support its decision. People v. Richardson, 58 P.3d 1039, 1042 (Colo.App.2002) ; see also Carrillo v. People, 974 P.2d 478, 486 (Colo.1999) (an appellate court must examine the entire voir dire of the prospective juror).

¶ 14 Here, prospective Juror H indicated that she had doubts about her ability to be fair and impartial because her son had been accused of burglary in connection with a domestic violence incident, stating:

• Her son's case "possibly could affect [her] thought process throughout it all";

• "[A]fter being with [her son] through the whole legalities of it all, the repercussions of his act, it's—it would be hard for [her] to be impartial";

• The victims would "probably" not want her as a juror, her "being a mother of someone who—being so close to my son, having gone through it with him, it's hard to be impartial";

• She "would try" to listen to the evidence knowing one of the charges in the case was the charge that had been brought against her son; and

• She would "have a hard time with" finding the defendant guilty because he could face time in prison.

¶ 15 In response to leading questions propounded by the defense, however, she indicated that she could listen to the case and reserve judgment until hearing all the evidence, follow the court's instructions and apply the facts to the law, and not consider sentencing when deciding the case.

¶ 16 The prosecutor challenged prospective Juror H for cause, and the court denied the request.

¶ 17 During subsequent voir dire in open court, prospective Juror H gave additional responses suggesting she was doubtful of her ability to be fair:

• She "probably would have a problem with" the charges other than assault, including following the law as to any slight movement being sufficient for kidnapping;• When asked if she could follow the law even if she didn't agree with it, she said, "yeah, I guess I could";

• She agreed with the prosecutor that "this would be a really hard case [for her] to listen to or be a part of," although she said she "could certainly try" to be fair to all parties and listen to all the evidence honestly; and

• When asked if she could be a juror in this case, she said, "No."

¶ 18 Again, defense counsel had prospective Juror H confirm, in response to leading questions, that she could listen to the case and reserve judgment until hearing all evidence and follow the court's instructions.

¶ 19 The prosecutor challenged prospective Juror H for cause a second time, noting that "[h]er eyes welled up with tears as she talked about" her son's conviction. Defense counsel argued that prospective Juror H had said she could follow the court's instructions and reserve judgment until hearing all the evidence. The court granted the challenge.

¶ 20 Although prospective Juror H agreed with defense counsel that she could follow the court's instructions and reserve judgment until hearing all the evidence, the record also indicates that she was deeply conflicted about her ability to be fair given her experience with her son's case. Indeed, the prosecutor indicated that she "teared up" when talking about how the case would affect her. Because her answers were equivocal and conflicting, it was for the court to weigh and determine the sincerity and credibility of these responses. The court acted within its discretion in removing prospective Juror H because it was not satisfied she would render a fair and impartial verdict. See Wilson, ¶¶ 19–22 (upholding the removal of a prospective juror who, despite other assurances that he could be fair, said he "c[ould]n't honestly say yes or no," whether, in deciding the case, he would consider the "unfair[ ]" way a friend had been treated in the criminal justice system); People v. Mack, 33 P.3d 1211, 1217–18 (Colo.App.2001) (the trial court acted within its discretion in granting prosecution's challenge for cause to juror who, despite assuring the court that he could be objective, also said he "would be very harsh on how [the prosecution] proved [its] case," did not think the drug laws were fair, and had seen drug prosecutions "destroy people's lives"); People v. Schmidt, 885 P.2d 312, 315 (Colo.App.1994) (the trial court...