People v. Strock

• Decision Date: 19 August 2010
• Docket Number: No. 06CA1831.,06CA1831.
• Citation: 252 P.3d 1148
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Richard Alfred STROCK, Defendant–Appellant.
• Court: Colorado Court of Appeals

252 P.3d 1148

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

v.Richard Alfred STROCK, Defendant–Appellant.

No. 06CA1831.

Colorado Court of Appeals, Div. I.

Aug. 19, 2010.

John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Douglas K. Wilson, Colorado State Public Defender, Ari Krichiver, Deputy State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.Opinion by Judge TAUBMAN.

Defendant, Richard Alfred Strock, appeals the judgment of conviction entered on jury verdicts finding him guilty of vehicular homicide while driving under the influence, driving under the influence, and driving under the influence per se,¹ as well as his sentence to forty-eight years in the Department of Corrections (DOC). We affirm.

I. Background

This case stems from a car accident that occurred on January 29, 2005. Strock's wife was killed after the vehicle Strock and his wife were traveling in collided with a guardrail and cement barrier on Interstate 70 in Denver. Strock was charged with various offenses and, following a jury trial, he was convicted of vehicular homicide while driving under the influence, driving under the influence, and driving under the influence per se. After finding Strock to be a habitual criminal based on two prior felony drug convictions and two prior felony convictions for driving after revocation prohibited, the trial court sentenced Strock to forty-eight years in the custody of the Department of Corrections.

II. Prosecutorial Misconduct

Strock contends his conviction should be reversed because of prosecutorial misconduct. We disagree.

A. Standard of Review

The determination of whether a prosecutor's statements constitute inappropriate prosecutorial argument is an issue within the trial court's discretion, People v. Foster, 971 P.2d 1082, 1085 (Colo.App.1998), and we will not disturb its rulings pertaining thereto in the absence of a showing of gross abuse of discretion resulting in prejudice and a denial of justice. People v. Moody, 676 P.2d 691, 697 (Colo.1984); People v. Suazo, 87 P.3d 124, 128 (Colo.App.2003). When a defendant objects at trial, the error will be regarded as harmless if there is no reasonable probability that it contributed to the defendant's conviction. Crider v. People, 186 P.3d 39, 42 (Colo.2008).

When a defendant does not object at trial, we review whether an error requires reversal under the plain error standard. People v. James, 117 P.3d 91, 95 (Colo.App.2004). “To constitute plain error, prosecutorial misconduct must be flagrant or glaringly or tremendously improper, and it must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.” People v. Weinreich, 98 P.3d 920, 924 (Colo.App.2004), aff'd, 119 P.3d 1073 (Colo.2005). Prosecutorial misconduct in closing argument rarely constitutes plain error. Id.

Prosecutorial misconduct constitutes plain error only when there is a substantial likelihood that it affected the verdict or that it deprived the defendant of a fair and impartial trial. People v. Sommers, 200 P.3d 1089, 1096 (Colo.App.2008).

B. Applicable Law

Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury. People v. Geisendorfer, 991 P.2d 308, 312 (Colo.App.1999). Defense counsel's failure to object is a factor that may be considered in examining the impact of a prosecutor's argument and may “demonstrate defense counsel's belief that the live argument, despite its appearance in a cold record, was not overly damaging.” People v. Rodriguez, 794 P.2d 965, 972 (Colo.1990) (quoting Brooks v. Kemp, 762 F.2d 1383, 1397 n. 19 (11th Cir.1985)). A prosecutor has wide latitude to make arguments based on facts in evidence and reasonable inferences drawn from those facts. People v. McBride, 228 P.3d 216, 221 (Colo.App.2009).

To determine whether prosecutorial misconduct requires reversal, we must evaluate the severity and frequency of the misconduct, any curative measures taken by the trial court to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to the defendant's conviction. People v. Merchant, 983 P.2d 108, 114 (Colo.App.1999).

C. Appealing to Jury's Sympathies

Strock contends the prosecutor twice improperly appealed to the jury's sympathies during closing argument. We disagree.

1. “Lying on a Slab”

We reject Strock's contention that the prosecutor's statement, “It could just as easily have been [a witness] who was lying on that slab in the coroner's office,” was misconduct because it appealed to the sympathies of the jury and the trial court erred in overruling his objection.

This is the only instance of alleged prosecutorial misconduct which Strock preserved at trial, and, thus we review for an abuse of discretion.

Here, the witness to whom the prosecutor referred testified that when Strock's vehicle approached him rapidly, he braced himself for a collision. The witness also testified that Strock's vehicle skidded just as he thought a crash was imminent and then crossed several lanes before hitting the center median on the highway. Accordingly, we conclude the trial court did not abuse its discretion in ruling that the statement was a reasonable inference from the evidence in the record and did not constitute misconduct. McBride, 228 P.3d at 221.

2. “Loaded Gun”

Strock also contends the prosecutor improperly appealed to the jury's sympathies by stating during closing argument, “There were other people on that highway that night traveling west on I–70, and he was a loaded gun for every single one of them.” We disagree.

In making a closing argument, a prosecutor may ordinarily “employ rhetorical devices and engage in oratorical embellishment and metaphorical nuance.” People v. Collins, 250 P.3d 668, 678 (Colo.App.2010) (quoting People v. Allee, 77 P.3d 831, 837 (Colo.App.2003)). However, such embellishments are improper if they induce the jury to determine guilt on the basis of passion or prejudice, inject irrelevant issues into the case, or accomplish some other improper purpose. People v. Bowles, 226 P.3d 1125, 1132–33 (Colo.App.2009).

We conclude there was ample evidence in the record to support the jury's conclusion that Strock's conduct was the proximate cause of the victim's death. Several witnesses testified that Strock was driving the vehicle and that there was no indication that another vehicle was involved in the accident. Evidence was also presented of Strock's intoxication at the time of the accident. We conclude the prosecutor's statement was a proper oratorical embellishment or metaphorical nuance and was not error, much less plain error.

D. Misstatement of Law

Strock contends the prosecutor twice misstated the law when he discussed the proximate cause element of vehicular homicide during closing argument. First, he contends the prosecutor misstated the law when he said that if Strock had been broadsided when someone else ran a red light, “it would still be his fault because he was drunk and he got behind the wheel of the car.” Second, Strock contends the prosecutor engaged in misconduct by stating that no phantom car caused the accident and even if there had been ten phantom cars, Strock's conduct caused the victim's death. The prosecutor's comment that no phantom car caused the accident was in response to Strock's argument that he was not the proximate cause of the accident because another vehicle had struck his vehicle; Strock does not challenge this portion of the prosecutor's statement. Rather, Strock objects to the prosecutor's statement that even if ten phantom cars had collided with Strock's vehicle, he was still the proximate cause of the victim's death.

Strock alleges that these statements misstated the elements of proximate cause and led the jury to erroneously conclude that it only had to determine Strock drove while intoxicated to convict him of vehicular homicide. We conclude that the prosecutor erred in making these statements, but that they do not rise to the level of plain error.

To prove vehicular homicide, the People must show that the defendant's reckless driving was the proximate cause of the victim's death. People v. Garner, 781 P.2d 87, 89 (Colo.1989) (in other words, that “the defendant voluntarily drove while intoxicated and that his driving resulted in the victim's death”); People v. Reynolds, 252 P.3d 1128, 1134 (Colo.App.2010). Proximate cause means a cause which in natural and probable sequence produced the claimed injury. People v. Prieto, 124 P.3d 842, 847 (Colo.App.2005). The Garner court also held that the conduct at issue for purposes of proximate cause is the voluntary act of driving while intoxicated, and the People do not need to prove that “the intoxication affected the driver's operation [of the vehicle] in a manner that results in a collision.” Garner, 781 P.2d at 89; see also People v. Grassi, 192 P.3d 496, 499–500 (Colo.App.2008) (court upheld a jury instruction that stated, “For purpose [s] of the strict liability crime of Vehicular Homicide, ‘proximate cause’ means the voluntary act of driving while intoxicated.”).

We conclude the prosecutor's statements were erroneous because they did not require the jury to find that Strock's driving while intoxicated caused the victim's death.

However, we conclude that the prosecutor's misstatements were offset by the following four factors: (1) the prosecutor also told the jury during closing argument that it had to prove Strock “is the person who set in motion the actions that caused the death” of the victim and “if he had not gotten in that car, it wouldn't have happened”; (2) the jury was instructed that to convict Strock of vehicular homicide it must determine that Strock was driving while intoxicated and that his conduct was a...