People v. Raglin, 98CA1385.

• Decision Date: 28 September 2000
• Docket Number: No. 98CA1385.,98CA1385.
• Citation: 21 P.3d 419
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alfred RAGLIN, Defendant-Appellant.
• Court: Colorado Court of Appeals

21 P.3d 419

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alfred RAGLIN, Defendant-Appellant.

No. 98CA1385.

Colorado Court of Appeals, Div. II.

September 28, 2000.

Certiorari Denied March 26, 2001.¹

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Katherine Brien, Dana Nichols, Deputy State Public Defenders, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Alfred Raglin, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree murder. We affirm.

On June 27, 1997, two people observed defendant and the victim fighting in a car at a neighborhood park. After hearing the victim scream, they called the police.

Upon their arrival, the police found defendant in the car covered with blood. The victim was on the floor of the vehicle with numerous stab wounds, which ultimately proved fatal.

The defense did not dispute that defendant had caused the victim's death. Rather, defendant's principal contention was that he did not kill the victim after deliberation, but rather "blacked out" during the stabbing.

I. Motion for Mistrial

A. Juror's Prior Criminal Conviction

Defendant asserts the trial court abused its discretion in denying his request for mistrial. Specifically, he argues that his rights to due process, jury trial, and a fair and impartial jury were violated because one of the jurors did not disclose that he had a previous assault conviction. We perceive no reversible error.

Mistrial is a drastic remedy and is warranted only where the prejudice to the defendant is so substantial that its effect on the jury cannot be remedied by any other means. People v. Burke, 937 P.2d 886 (Colo. App.1996). The determination whether to declare a mistrial is committed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent an abuse of that discretion and prejudice to the defendant. People v. Schwartz, 678 P.2d 1000 (Colo.1984).

Under the doctrine of invited error, a defendant may not later complain where he or she has been "the instrument for injecting error in the case; he is expected to abide by the consequences of his acts." People v. Collins, 730 P.2d 293, 304-05 (Colo.1986).

During the jury deliberations here, various jurors sent out five notes to the court regarding their concern that another juror was biased. The first note informed the court that the jury was deadlocked and that the juror in question refused to convict defendant of first degree murder, regardless of what the law dictated. The other four notes informed the court that the juror in question had described his prior experience with various issues related to the trial, in particular, assault, drug addiction, alcoholism and "yo-yo relationships," and therefore could not convict defendant of first degree murder. In these notes the jurors expressed the concern that the biases and personal experiences of the juror in question prevented him from applying the law to the facts without interjecting his emotions into his decision. The jurors also stated that they believed the juror in question had determined his point of view prior to the presentation of all the evidence.

In response to these notes, the trial court examined the juror's pre-selection questionnaire and found that when he was asked whether he had ever been charged with any crime other than a minor traffic offense, the juror had answered "No." The court then requested a conference with the juror and asked him again whether he had ever been charged with a crime more serious than a minor traffic offense. Again, the juror answered "No," but did admit that he had been charged with a traffic altercation offense. During this questioning, the court told the juror not to divulge to it any information regarding his feelings about the verdict or the content of the jury deliberations.

At the conclusion of the court's questioning, defendant requested a mistrial, asserting that because of the questioning of the allegedly biased juror, a "bad message" was being sent to the rest of the jury. The trial court denied the request.

Upon further investigation, the court discovered that the traffic altercation was actually an assault charge to which the juror had pled guilty.

Defendant again requested a mistrial based on the juror's disclosure of false information. The trial court denied the renewed request, concluding that the juror's non-disclosure was not significant. Nevertheless, the court offered to replace the juror with one of the two alternate jurors who remained "on call". Defendant declined, stating that replacing the juror would not be an adequate remedy at this advanced stage of the deliberation process. However, replacing a juror after deliberations have begun is an adequate remedy, as long as the trial court takes extraordinary precautions to ensure there is no prejudice to the defendant's right to a fair trial. See People v. Burnette, 775 P.2d 583 (Colo.1989)

.

Based on our review of the record, we conclude that because the defendant refused the trial court's offer to replace the juror, he invited any error that may have occurred. See People v. Collins, supra. Therefore, the trial court did not abuse its discretion in denying defendant's request for mistrial.

B. Jury's Likelihood of Progress

Defendant next asserts the trial court erred in giving the jury a coercive instruction after learning that it had reached an impasse. Specifically, he argues that reversal is required because the trial court failed to ask the jury whether further deliberations would be helpful. We disagree.

Upon receiving information that a jury cannot agree on a verdict, a trial court may not give an instruction with a potentially coercive effect, but may, in its discretion, give a "modified-Allen" instruction. See Allen v. People, 660 P.2d 896 (Colo.1983)

.

Such instruction must inform the individual jurors that they should attempt to reach a unanimous verdict, but that they should not be influenced to change their opinion by the opinions of the other jurors. In addition, the instruction must inform the jurors that if it appears to the trial court that a unanimous decision cannot be reached, they will be excused and a mistrial will be declared. The exact wording of such an instruction is within the discretion of the trial court. People v. Schwartz, supra.

A prerequisite to giving a "modified-Allen" instruction is that the trial court inquire of the jurors as to whether further deliberations would be productive. However, even if the trial court does not make such an inquiry, the error is harmless where the instruction given is not coercive and does not impliedly or expressly authorize the jury to render a compromise verdict. People v. Ragland, 747 P.2d 4 (Colo.App.1987).

Here, the trial court made the following statement to the jury:

I would ask you at this time to please go back to the jury room and resume your deliberations. If after you have tried that you believe that you're unable to reach a unanimous verdict, you can let us know when you have decided that, and we'll go from there.

Defense counsel objected to the instruction, and the court overruled the objection. Shortly thereafter, the jury returned with a verdict finding defendant guilty of first degree murder. Each juror, including the allegedly biased juror, affirmed that the verdict represented a free and voluntary decision.

Defendant renewed his request for a mistrial, and the trial court again denied the request.

Under these unique circumstances, we conclude that it was unnecessary for the trial court to ask the jurors whether they were deadlocked before giving them the "modified-Allen" instruction. The trial court was extremely cautious and did not ask the allegedly biased juror about the deliberations. In addition, it was already clear from the notes of the jurors that they felt they had reached an impasse prior to the court's conference with the juror.

We further conclude that the court's instruction was not coercive, but merely encouraged the jury to reach a unanimous verdict. The instruction also made clear that, in the event the jurors could not reach a unanimous verdict, they should inform the court and further action would be taken at that time. Thus, no reversible error occurred.

II. Similar Transaction Evidence

Defendant next contends the trial court employed an incorrect legal standard in determining the admissibility of similar transaction evidence. We disagree.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity with that character. However, such evidence is admissible for other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b).

In cases involving domestic violence, where the defendant and the victim have engaged in an intimate relationship, the admissibility of "other acts" evidence is governed by § 18-6-801.5, C.R.S.2000. That statute provides that evidence of other acts of domestic violence between the defendant and the victim are admissible if offered to show common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or some other purpose. In ruling on the admissibility of such evidence, the trial court must determine whether its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Section 18-6-801.5, C.R.S. 2000.

A trial court has substantial discretion in determining the admissibility of prior acts evidence, and such determination will not be disturbed on appeal absent an abuse of such discretion. People v. Groves, 854 P.2d 1310 (Colo.App.1992).

Here, the prosecutor introduced evidence that: (1) in 1995, defendant had threatened...