People v. Robinson

• Citation: 187 P.3d 1166
• Decision Date: 29 May 2008
• Docket Number: No. 05CA1231.,05CA1231.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rumon A. ROBINSON, Defendant-Appellant.
• Court: Court of Appeals of Colorado

187 P.3d 1166

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rumon A. ROBINSON, Defendant-Appellant.

No. 05CA1231.

Colorado Court of Appeals, Div. III.

May 29, 2008.

As Modified on Denial of Rehearing July 10, 2008.

John W. Suthers, Attorney General, Sean A. Moynihan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge JONES. J

Defendant, Rumon A. Robinson, appeals the judgments of conviction entered on jury verdicts finding him guilty of two counts of possession of more than one gram of a schedule II controlled substance, two counts of possession of a weapon by a previous offender, and one special offender — deadly weapon sentence enhancer. He also appeals the sentence imposed. We affirm.

I. Background

In 2004, two police officers on routine patrol stopped defendant's car because they noticed that the license plates were registered to a different vehicle. Defendant gave the officers a false name and date of birth, and failed to provide a valid driver's license, vehicle registration, or proof of insurance. The officers took defendant into custody, and placed him in the back of the police car. The officers also instructed a female who had been riding as a passenger in defendant's vehicle to get out of the vehicle so the officers could search it. The officers found a loaded .38 caliber handgun (located between the driver's seat and the driver's side door), a loaded .45 caliber semi-automatic pistol (located under the driver's seat), a plastic box containing cocaine and methamphetamine, two glass pipes, two baggies containing marijuana, a cigar with marijuana residue in it, and, inside the female passenger's handbag, a switchblade and a tin containing marijuana residue.

The People charged defendant with two counts of possession of more than one gram of schedule II controlled substances (cocaine and methamphetamine) — second offenses, in violation of section 18-18-405(1), (2)(a)(I)(B) C.R.S.2007; two counts of possession of a weapon by a previous offender, in violation of section 18-12-108(1), C.R.S.2007; and one count of a special offender — deadly weapon sentence enhancer pursuant to section 18-18-407(1)(f), C.R.S.2007.

Prior to trial, defendant filed a motion requesting (1) that the two counts for possession of a schedule II controlled substance be tried separately, to a different jury, from the two counts for possession of a weapon by a previous offender, or (2) that bifurcated trials be ordered on the controlled substance and weapons counts, or (3) that he be allowed to waive his right to a jury and have all counts tried to the court. On the day trial was set to begin, defendant's counsel requested that the jury trial be limited to the controlled substance counts and the special offender — deadly weapon sentence enhancer, and that if the jury found defendant guilty of those charges, the court should decide whether defendant had prior convictions so as to make him guilty of the prior offender counts. Defendant's counsel then altered course and renewed his request for a different jury on the special offender counts.

The court ordered a bifurcated trial in which all counts would be presented to the same jury, with the controlled substance counts being tried first. Defendant's counsel objected to the court's ruling and requested that defendant be allowed to waive his right to a jury trial and proceed to a trial by the court on all counts. The People objected to defendant's waiver of a jury trial.

The case was tried to a jury in a bifurcated proceeding. The jury found defendant guilty of both counts of possession of a controlled substance, as well as the special offender — deadly weapon sentence enhancer. Then, after the jury was informed that it must also determine defendant's guilt on the previous offender counts, evidence was presented on those counts. The jury found defendant guilty of both counts of possession of a weapon by a previous offender.

The court sentenced defendant to two concurrent sixteen-year terms of imprisonment for the controlled substance convictions and two concurrent eighteen-month terms of imprisonment for the previous offender convictions, all to be served in the custody of the Department of Corrections, as well as a mandatory parole period.

II. Discussion

A. Batson Challenge

Defendant, who is African-American, contends the district court erred in denying his Batson challenge to the People's use of a peremptory challenge to excuse the only African-American potential juror. We disagree.

During voir dire, the prosecutor first questioned another potential juror, Mr. G., about his opinion of the current drug laws. Mr. G. responded that he felt the drug laws were "generally fair," but that some penalties were "severe." The prosecutor then told Mr. G. and the rest of the panel that the jury in this case would not have any part in deciding defendant's penalty, and asked Mr. G. if he would be able to "just look at it that way." Mr. G. replied that he would.

The prosecutor then turned his attention to the juror at issue, Ms. V., and the following exchange took place:

[PROSECUTOR]: Um, Ms. [V.]?

MS. [V.]: Yes.

[PROSECUTOR]: How about you? How do you feel about [the drug laws]?

MS. [V.]: Um, I feel like I could be fair.

[PROSECUTOR]: Actually, really, I'm asking about the drug laws, how do you feel?

MS. [V.]: That they're fair, but like they're pretty strenuous.

[PROSECUTOR]: I'm sorry, you're very soft spoken. I'm a little hard of hearing, I admit. Could you repeat that?

MS. [V.]: I feel the same way [Mr. G.] does, like we don't need to be concerned with it.

The prosecutor did not ask Ms. V. any other questions in the course of voir dire.

After voir dire, the prosecutor challenged certain jurors for cause, including Ms. V. The prosecutor asserted that Ms. V. had slept through "a large part of voir dire," nodding off "at least twice," thereby rendering her incapable of providing "fair jury service." Defendant's counsel objected and argued that had Ms. V. slept during the proceedings, the prosecutor should have immediately informed the court. The court denied the prosecutor's challenge for cause, stating:

I'm denying the challenge for Ms. [V.] I did not notice her sleeping. I face the jury, but I don't [stare] obviously at any particular juror throughout, and I didn't notice it. So I am going to deny that one.

The prosecutor subsequently exercised a peremptory challenge against Ms. V. Defendant's counsel raised a Batson objection, arguing that, because Ms. V. was the only African-American potential juror, the prosecutor's claim that he saw her falling asleep was suspect, particularly since no one else corroborated that allegation. The prosecutor responded as follows:

Your Honor, regarding [Ms. V.], there are numerous reasons I exercise any peremptory challenge. First of all, um, during one occasion when juror number 17, Ms. [K.] made the statement where she thinks police officers don't lie, I noticed a very strong reaction on the part of [Ms. V.], and where she opened her eyes wide and shook her head.

I didn't see any other juror do that, indicating to me that's a very strong disagreement with what Ms. [K.] said, which to me indicated a, um, indicates a tendency to disbelieve the police. Even if she hadn't testified to that previously, throughout the jury selection I saw her with her eyes closed and face pointed down. I didn't know throughout jury selection whether she was sleeping or whether that was just the way she listens to things, but I noticed actually when Your Honor was giving the final set of instructions, prior to the challenges for cause, that's when I noticed her nodding off, and I noticed that, probably about a minute before I said anything to the Court, was when I noticed her nodding off.

And, um, I don't think that someone nodding off during — while the jury selection process is taking place, is someone who is going to give — whether for their own reason, or because they're tired or whatever, is going to be able to give their full consideration to the evidence that I've presented or arguments of counsel, that's the reason that I struck the juror.

The court denied defendant's counsel's Batson objection, stating:

The Court finds that ... the D.A. has stated an articulable non-racial [basis] for his peremptory, which is the standard. So the motion for, I guess, reinstating Ms. [V.] into the jury is denied. Thank you.

1. Applicable Law

The use of peremptory challenges to purposefully discriminate against jurors of a protected class violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 87, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Craig v. Carlson, 161 P.3d 648, 653 (Colo.2007). "Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson, 476 U.S. at 86, 106 S.Ct. 1712. "Although a defendant has no right to a `petit jury composed in whole or in part of persons of [the defendant's] own race,' he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria." Powers v. Ohio, 499 U.S. 400, 404, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (citation omitted) (quoting Strauder v. West Virginia, 100 U.S. 303, 305, 25 L.Ed. 664 (1879)).

"`Discriminatory purpose' ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected ... a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group."...