People v. Robinson, 91CA0763

• Decision Date: 09 December 1993
• Docket Number: No. 91CA0763,91CA0763
• Citation: 874 P.2d 453
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Todd K. ROBINSON, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 453

874 P.2d 453

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Todd K. ROBINSON, Defendant-Appellant.

No. 91CA0763.

Colorado Court of Appeals,

Div. V.

Dec. 9, 1993.

Rehearing Denied Jan. 13, 1994.

Certiorari Denied June 6, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Jonathan A. Abbott, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Thomas R. Williamson, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge MARQUEZ.

Defendant, Todd K. Robinson, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of first degree murder, one count of conspiracy to commit first degree murder, and one count of child abuse resulting in death. He also challenges the sentence imposed. We affirm both the judgment and the sentence.

This case concerns the death of the daughter of defendant's wife. Evidence presented at trial indicated that although the child, age 5 1/2, had suffered from several months of abuse and neglect, she died on August 3, 1989, as a result of a blow or blows to her head.

At trial, there was abundant evidence of abuse by both defendant and his wife. Defendant's defense was that his wife had killed the child without his aid, agreement, or intention.

I.

Defendant first argues that the trial court's denial of his challenge for cause of a prospective juror deprived him of his constitutional right to a fair and impartial jury. We perceive no error.

The test to be applied in determining whether a prospective juror should be dismissed for cause is whether that person would render a fair and impartial verdict based on the evidence presented at trial and the instructions given by the court. People v. Drake, 748 P.2d 1237 (Colo.1988).

On review, a decision denying a challenge for cause will be set aside only if the record discloses a clear abuse of discretion by the trial court. People v. Drake, supra; see also People v. Taggart, 621 P.2d 1375 (Colo.1981) (a child abuse case in which the standard of review was termed "manifest abuse of discretion").

Because the prospective juror had nine young grandchildren, she initially expressed doubt as to whether she could be a fair and impartial juror. However, she repeatedly stated that she wanted to be fair and wanted to hear the whole story before reaching a conclusion on defendant's guilt or innocence. She also stated that she could give defendant a fair trial and could vote not guilty even if she were the only one voting that way. She concluded with the words: "I would still want to be fair. There's still emotion, but I want to be fair. And I want to hear the whole story."

It is the trial court's prerogative to give considerable weight to a potential juror's statement that she could fairly and impartially serve on the case. People v. Drake, supra. And, after reviewing the entire voir dire, we can find no abuse of discretion in the decision to deny the challenge for cause. Compare People v. Taggart, supra, with People v. Zurenko, 833 P.2d 794 (Colo.App.1991).

II.

Defendant next argues that, because the trial court made an evidentiary ruling in front of the jury, and because the trial court showed its personal sympathy and bias toward two child witnesses, he was deprived of his fundamental right to a fair trial before an impartial tribunal. We disagree.

A.

Defendant argues that the trial court's statement in front of the jury requires reversal. We disagree.

During the testimony of one of the state's witnesses, defense counsel objected to hearsay statements of defendant's wife concerning what defendant had done. The trial court asked if the testimony was being offered as an exception to the hearsay rule. The prosecutor stated: "Based upon the conspiracy between the two of them during this period of time." After this the court overruled the objection.

Defense counsel then asked for a hearing stating: "As the Court well knows, you can't enter any types of alleged conspiracy statements until there's been a conspiracy established by matter of law, and there needs to be a hearing on that."

The following exchange then took place:

[Prosecutor]: Well, I would agree with that, but I think I have already had evidence as to a conspiracy established already through the children and through--

THE COURT: The Court finds there is sufficient evidence presented thus far to satisfy that requirement of the law.

Defense counsel then requested a cautionary instruction. After a brief discussion, the judge and counsel had a hearing outside of the presence of the jury. Defense counsel presented the requested instruction and also requested a mistrial based on the court's finding before the jury that the prosecution had already established that a conspiracy existed.

After reviewing the transcript, the court denied the motion for a mistrial. Because of defense counsel's statements concerning a conspiracy, the court reasoned that it would be obvious the finding had been made if the testimony was allowed to come in.

Defendant contends that the trial court's ruling in front of the jury was particularly prejudicial in this case. Defendant argues that the court's ruling on the conspiracy issue implied that he was guilty of murder as a complicitor and guilty of conspiracy to commit murder.

To determine whether a statement is admissible under the co-conspirator exception, a trial court must find by a preponderance of the evidence that a conspiracy exists. People v. Montoya, 753 P.2d 729 (Colo.1988). This is a ruling reserved for the trial court under CRE 104(a) and should ordinarily be made outside the presence of the jury.

We agree that the trial court should have made its ruling outside the presence of the jury and that the charges in this case may have compounded any error. However, for several reasons, we conclude that this error does not require reversal.

Under the harmless error rule, an error in a criminal trial will be disregarded if there is not a reasonable possibility that the error contributed to the defendant's conviction. See Crim.P. 52(a). The proper inquiry in determining a harmless error question is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings. People v. Fuller, 788 P.2d 741 (Colo.1990).

We find the error here to be harmless, first, because defendant initiated the open discussion before the jury by questioning whether "there's been a conspiracy established by matter of law." Second, reversal is not required because the trial court gave a lengthy curative instruction at defendant's request. That instruction stated:

Ladies and Gentlemen, there are two matters which I want to advise you of.

First of all, any rulings I make on the law are matters solely on issues of law and have nothing at all to do with the facts of this case. You are the sole determin[ers] of the facts. That is not a responsibility of the Court but is the responsibility of the jury. It's the Court's responsibility to make particular rulings on law which deal with admissibility of evidence.

In addition thereto, I would like to read you this instruction. 'Hearsay statements of an alleged accomplice must always be examined and weighed by the jury with great[er] care and caution than the statement[s] of ordinary witnesses. You must decide whether the hearsay statements have been affected by the accomplice's interest in the outcome of the case or by the prejudice against the defendant or by their interest in lessening their culpability by spreading the blame for their actions by including others. You should keep in mind that such testimony is always to be received with caution and weighed with great care.'

The court repeated this latter instruction prior to submitting the case to the jury.

Finally, whether a conspiracy actually existed was a question of fact for the jury, People v. Montoya, supra, and the jury was so instructed here. The jury was also given a separate complicitor instruction, and therefore, we presume that it did not confuse complicity with conspiracy. Thus, we conclude that any error of the court was harmless. See People v. Hodges, 624 P.2d 1308 (Colo.1981).

B.

The second part of defendant's fair trial argument is that the trial court committed reversible error by demonstrating a personal bias and sympathy for two child witnesses. We disagree.

A criminal defendant has a due process right to a fair trial before an impartial trial judge and an impartial jury. See Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971); People v. Drake, supra. Accordingly, a trial court may not express to a jury any personal opinion of the credibility of a witness and, indeed, should scrupulously avoid even the appearance of partiality. People v. Rogers, 800 P.2d 1327 (Colo.App.1990).

Here, the victim's 8-year-old brother and 9-year-old sister both testified for the prosecution. When the sister was leaving the stand, the court said, "Okay, thank you. Bye-bye, Honey. Here's something for you." During a recess between the testimony of the two children, the following exchange took place:

[Defense Counsel]: Judge, before we bring in the jury, we would like to make a record that after the last child witness testified that you had your reporter hand her some candy, and we feel it's inappropriate to do that in front of the jury, as it looks like it's a reward for them testifying in the prosecution's case.

We would ask that you would not do it with this witness in front of the jury. I don't have any problem afterwards.

[The Court]: I am going to do it, whether it be in front of the jury or whether it not be in front of the jury. I will do it. Bring in the jury please.

Although the brother testified next, the record does not indicate whether the brother was given anything when he finished testifying. The record contains only the...