People v. Saiz, 94CA0069

• Decision Date: 24 November 1995
• Docket Number: No. 94CA0069,94CA0069
• Citation: 923 P.2d 197
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Peggy Sue SAIZ, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 197

923 P.2d 197

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Peggy Sue SAIZ, Defendant-Appellant.

No. 94CA0069.

Colorado Court of Appeals,

Div. II.

Nov. 24, 1995.

As Modified on Denial of Rehearing

Feb. 1, 1996.

Certiorari Denied Sept. 3, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Catherine P. Adkisson, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Gerash, Robinson & Miranda, P.C., Walter L. Gerash, Todd J. Thompson, Denver, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Peggy Sue Saiz, appeals from the judgment of conviction entered upon a jury verdict finding her guilty of first degree murder in the death of her husband. We affirm.

On November 9th, 1990, defendant shot the victim four times in the back of the head while he slept. Afterwards, in order to simulate a burglary, she collected valuable items from their home and took some to her mother's house and others to her boyfriend's house.

Later that evening, she and her sister went to a bar where she met a man with whom she danced, and after the bar closed, the three of them went out for a late night snack. It was not until defendant and her sister returned to defendant's home that her sister called 911 and reported the homicide. Defendant had previously told her sister about her involvement in the killing.

Defendant initially told the police that when she and her sister returned home from dancing, they found the victim dead and the house burglarized. During police questioning a few weeks later, however, she admitted that she had killed the victim, but claimed that she had done so in self-defense.

According to defendant's account to the police, the victim had physically abused her on numerous occasions and, on the day of the homicide, had threatened to kill her and forced her to have sex. She claimed that she shot him in fear that he would kill her when he awoke.

Charged with first degree murder, defendant entered a plea of not guilty by reason of insanity and asserted a defense of impaired mental condition. Thereafter, a jury found defendant to be sane, and, on the first day of the trial on the substantive offense, she withdrew her impaired mental condition defense.

At trial, defendant argued that she had acted in self-defense as a battered woman when she shot the victim. The jury was instructed on self-defense and on second degree murder and heat of passion manslaughter. The jury returned a guilty verdict on first degree murder, and the court sentenced defendant to life imprisonment without the possibility of parole.

I.

Defendant first contends that the trial court erred in excluding the testimony of three defense witnesses. We disagree.

The admission of evidence is within the discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. People v. Schwartz, 678 P.2d 1000 (Colo.1984). To demonstrate an abuse of discretion, a defendant must show that the trial court's ruling was manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33 (Colo.1993).

A.

We reject defendant's assertion that the trial court abused its discretion in excluding the testimony of her daughter's teacher.

Defendant made an offer of proof that the teacher would have testified that, on the day of the homicide, defendant's daughter refused to go home from school and he was so concerned about her behavior that he reported it to the school principal in fulfillment of his obligation to report possible child abuse.

Defendant argues that this testimony was relevant to show that the victim was planning a violent attack on defendant that day. This inference, defendant claims, is supported by other evidence in the record. Additionally, defendant asserts that the teacher's testimony was relevant to show that the victim had become increasingly abusive towards defendant's daughter.

The trial court excluded this evidence as irrelevant, as being for the most part hearsay, and as being speculative concerning the daughter's fearing violence from the victim.

Because defendant's daughter did not tell her teacher why she did not want to go home, the teacher's testimony concerning the daughter's statements, even if arguably admissible under the state of mind exception to the hearsay rule, CRE 803(3), was not relevant under CRE 401. Moreover, defendant was relying on a theory of self-defense, not defense of others, so any possible inference as to the victim's treatment of defendant's daughter was not relevant.

Accordingly, the trial court did not abuse its discretion in excluding the teacher's testimony.

B.

We also reject defendant's contention that the trial court erred in excluding the testimony of a co-worker of defendant and the victim.

The co-worker would have testified that, in 1986 or 1987, he and the victim were passengers on a bus driven by defendant, that the victim had become jealous because men on the bus, including the co-worker, were sitting near the defendant, and that the victim had insulted these men and challenged the co-worker to a fight. The witness would also have testified that defendant became very upset as a result of this incident and asked him not to speak to her again in the victim's presence.

Defendant argues that this testimony is relevant because it reveals that the victim made threats in defendant's presence and also because the victim's behavior in this situation was consistent with that of a batterer.

After allowing the defense to examine the co-worker in camera, the court ruled that the testimony was irrelevant. The court found that the proffered testimony was essentially bad character evidence and concluded that it should be excluded under CRE 403 because its probative value was substantially outweighed by the danger of unfair prejudice.

Here, because the victim did not engage in violence during the incident in question, the probative value of the testimony was slight. There was, however, a danger of unfair prejudice because the victim had become upset and used foul language during this incident. Furthermore, because other witnesses had testified that the victim was jealous and had a bad temper, this evidence was cumulative.

Trial courts are allowed broad discretion in determining whether the probative value of evidence is substantially outweighed by its prejudicial effect. See People v. Rubanowitz, 688 P.2d 231 (Colo.1984). We find no abuse of discretion here.

C.

We also reject defendant's contention that the trial court erred in excluding the testimony of the lawyer who had represented the victim's former wife in divorce proceedings.

The lawyer had helped the former wife obtain a temporary restraining order against the victim, and defendant sought to call him to testify that he obtained the restraining order based on verified allegations that the victim had physically abused his former wife and that she was in fear of him.

The trial court ruled that the lawyer's testimony was inadmissible as hearsay and that the allegations in support of the restraining order were not only hearsay, but also vague and conclusionary. The trial court did, however, instruct the jury that the victim's former wife had obtained a restraining order during divorce proceedings against the victim.

We conclude that the trial court's ruling was well within its discretion.

II.

Defendant asserts that the trial court erred in allowing the forensic psychiatrist who examined defendant during the sanity phase of trial to testify at the trial on the merits. Defendant also contends that the trial court improperly limited cross-examination of the psychiatrist. We disagree in part and agree in part, but find no reversible error.

A.

We disagree with defendant's contention that the trial court improperly allowed the psychiatrist to testify.

After defendant entered a plea of not guilty by reason of insanity, the trial court ordered a psychiatric examination pursuant to § 16-8-106, C.R.S. (1986 Repl.Vol. 8A). At the trial on the merits, after defendant had withdrawn her impaired mental condition defense, the psychiatrist who had previously examined the defendant was allowed to testify in rebuttal to expert witnesses called by defendant to establish that she suffered from battered woman's syndrome and post-traumatic stress disorder.

Section 16-8-107(1), C.R.S. (1986 Repl.Vol. 8A) provides, in pertinent part:

[N]o evidence acquired directly or indirectly for the first time from a communication derived from defendant's mental processes during the course of a court-ordered examination under section 16-8-106 is admissible against the defendant on the issues raised by a plea of not guilty, if the defendant is put to trial on those issues....

Indicating its awareness of the limitations imposed by § 16-8-107(1), the trial court nevertheless concluded that the psychiatrist could testify as a rebuttal witness so long as she based her opinions on materials and information she had obtained and reviewed outside of her interviews with the defendant. The court specifically ruled that she could not refer to or rely upon the interviews she had with defendant.

Relying on the police reports, witness statements, video tapes of defendant's statements to police, and the reports of other experts, the psychiatrist proceeded to give her opinion as to whether the defendant "disassociated" at the time of the shooting, whether she suffered from post-traumatic stress disorder or battered woman's syndrome, and whether she was in fear for her life at the time of the shooting.

Defendant argues that the psychiatrist could not possibly have formed her opinions without relying on, at least to some extent, information she acquired during her court-ordered examination of the defendant. Alternatively, defendant argues that, even if the psychiatrist had been able to put this information aside, her testimony would...